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EXHIBIT 10.17
*** Text Omitted and Filed Separately
CONFIDENTIAL TREATMENT REQUESTED
Under 17 C.F.R. Sections 200.80(b)(4)
and 230.406
COMMERCE EXCHANGE PLATFORM AGREEMENT
This COMMERCE EXCHANGE PLATFORM AGREEMENT (the "AGREEMENT") is made as of
December 30, 1999 (the "EFFECTIVE DATE"), by and between CHANNELPOINT, INC., a
Delaware corporation having its main place of business located at 00000 Xxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxx 00000 ("CHANNELPOINT") and ZURICH
FINANCIAL SERVICES, a corporation having its main place of business located at
Xxxxxxxxxx 0, 0000 Xxxxxx, Xxxxxxxxxxx (the "COMPANY") and ZURICH INSURANCE
COMPANY, a corporation having its main place of business at Xxxxxxxxxx 0, 0000
Xxxxxx, Xxxxxxxxxxx ("ZIC" and collectively with the Company, "ZURICH").
RECITALS
A. ChannelPoint is in the business of, among other things, providing an
Internet-based electronic commerce exchange platform, electronic market
technology and Web-based services to provide insurance brokers and customers
with access to quotes, proposals and policy information and to enable the
purchase of insurance policies and other insurance products via Web sites
established, developed and/or operated by ChannelPoint (the "COMMERCE EXCHANGE
PLATFORM" as defined below).
B. Through ZIC and other Affiliates, the Company is in the business of
providing insurance products and financial services to individuals and
businesses (the "ZURICH PRODUCTS," as defined below).
C. Zurich and ChannelPoint desire to enter into an agreement whereby
ChannelPoint will: (i) provide to Zurich ChannelPoint's Commerce Exchange
Platform [...***...] to enable the purchase and administration of insurance,
asset management and other financial services products through electronic
commerce portals to the Commerce Exchange Platform; (ii) if Zurich elects,
[...***...]; and (iii) provide related Professional Services.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and conditions, the parties to this Agreement agree as follows:
AGREEMENT
1. DEFINITIONS
1.1 "APIS" means the application program interface for the Commerce
Exchange Platform that are licensed by ChannelPoint to Zurich to provide the
basis for Applications.
1.2 "APPLICATION" means a software program that accesses the Commerce
Exchange Platform services through one or more APIs to facilitate a particular
business function for a specific set of end users or to provide such
functionality for use by other Applications.
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1.3 "APPLICATION TEMPLATES" are software components that ChannelPoint makes
commercially available under Section 3.3 below that can be combined and modified
by customer to build custom Applications.
1.4 "AFFILIATE" means a legal entity that controls, is controlled by or is
under common control with Zurich. For purposes of this Agreement, control means
the ability to directly or indirectly direct the business or management of any
entity; provided that no Affiliate may be a competitor of ChannelPoint in the
provision of exchange technology to third parties for insurance or financial
services. [...***...]
1.5 "BUSINESS UNIT" means an Affiliate, a group of Affiliates or a division
or other wholly-owned organizational unit of Zurich or an Affiliate, for which a
CEO is normally responsible, which provides Zurich Products and related services
to customers, and which consists of one or more legal entities or branches
organized into strategic business units and strategic support units.
1.6 "CHANNELPOINT CONTENT" and "CARRIER PLUG-INS" are defined in Section
6.3 below.
1.7 "COMMERCE EXCHANGE PLATFORM" means ChannelPoint's Internet-based
electronic commerce exchange platform, electronic market technology and
Web-based services (as described in more detail in Exhibit A) [...***...].
1.8 "DATA CENTER DEPLOYMENT DATE" means the date an Application is first
made available for commercial use on the Commerce Exchange Platform [...***...].
1.9 "DELIVERABLES" means any work product, software or other tangible items
provided to Zurich by ChannelPoint under a Statement of Work. Deliverables
includes any Applications developed by ChannelPoint for Zurich under a Statement
of Work, but excludes any commercially-available Applications licensed to Zurich
or any Affiliate under Section 3.1 below.
1.10 "EFFECTIVE DATE" is defined in the first paragraph above.
1.11 "EXCHANGE TOOLS" is defined in Section 6.2 below.
1.12 "DOCUMENTATION" means ChannelPoint's system-level and standard
published user-level documentation, provided to Zurich under this Agreement,
which describes the features, functions and operation of the Commerce Exchange
Platform.
1.13 "INITIAL DEPLOYMENT DATE" means the date an Application is first made
available for commercial use on the Commerce Exchange Platform [...***...].
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1.14 "LINES OF BUSINESS" or "LOBS" means specific classes of insurance or
financial service Products that are supported by business object models and
related technical infrastructure within the Commerce Exchange Platform.
1.15 "MARKS" means the trademarks, trade names, trade dress, service marks,
service names and logos owned or licensed by a party or its Affiliates, which
are provided for use by the other party under the terms of this Agreement.
1.16 "MAINTENANCE SERVICES" means the services provided by ChannelPoint for
maintenance of the Commerce Exchange Platform and certain Applications, as
provided in Section 4.1 below.
1.17 "OPEN MARKETPLACES" means one or more Web sites that are integrated
with the Commerce Exchange Platform, which includes Zurich Content and supports
Zurich Products in addition to products provided by Third-Party Carriers
[...***...].
1.18 "PLATFORM ROADMAP" means the features, functionality and new LOBs that
ChannelPoint intends to include within the Commerce Exchange Platform including
the proposed timing of such product offerings. The Platform Roadmap will be
considered ChannelPoint's Confidential Information under Section 9 below.
1.19 "PLATFORM UPGRADES" means the commercially available upgrades to the
Commerce Exchange Platform provided to Zurich pursuant to Section 4.1 below.
1.20 "PROFESSIONAL SERVICES" means any services provided to Zurich or any
Affiliate by ChannelPoint under a Services Supplement, including Application
development, installation support and service and platform customization
services.
1.21 "SERVICES SUPPLEMENT" means an agreement between Zurich and
ChannelPoint, or between an individual Affiliate and ChannelPoint, pursuant to
which ChannelPoint provides Professional Services to Zurich or the individual
Affiliate.
1.22 "SOURCE CODE" means: (i) native language program that will be compiled
or assembled by a commercially available compiler product; (ii) system level
documentation, including definitions, screen layouts, naming conventions, data
base layouts, libraries, flow charts, algorithms, processes, methodologies,
logic diagrams, formulas, and other related materials that are necessary to
provide sufficient information to enable a skilled programmer/analyst to
understand the program logic and perform maintenance and make enhancements to
the program; and (iii) user level documentation that contains sufficient
definitions, user instructions, screen layouts, functional description of the
software, operating instructions and examples of common business solutions to
enable a user to use the program for its intended purposes, including any
material updates thereto.
1.23 "STATEMENT OF WORK" means the specification of any Professional
Services (including Application development) to be provided by ChannelPoint
under this Agreement or a Services Supplement.
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1.24 "THIRD-PARTY CARRIERS" means third party underwriters and issuers of
insurance or other financial service products that are made available through
[...***...] or Open Marketplaces.
1.25 "THIRD-PARTY PRODUCT" is defined in Section 7.3(a) below.
1.26 "THIRD-PARTY SOFTWARE" means the software included within the Commerce
Exchange Platform that is acquired or licensed from third-party vendors as
specified in Exhibit B.
1.27 "ZURICH CONTENT" is defined in Section 6.1 below.
1.28 "ZURICH DATA CENTER" means a computing platform identified on Exhibit
C [...***...].
1.29 [...***...].
1.30 "ZURICH PRODUCTS" means insurance or financial service products
underwritten or manufactured by Zurich or its Affiliates, including any such
products distributed through the Commerce Exchange Platform, that are offered by
Zurich in any supported Lines of Business.
2. COMMERCE EXCHANGE PLATFORM TECHNOLOGY
2.1 COMMERCE EXCHANGE PLATFORM LICENSE. Subject to the terms of this
Agreement, ChannelPoint grants Zurich a perpetual (subject to termination as
provided in Section 13), [...***...] right to use and operate: (a) the Commerce
Exchange Platform [...***...] in accordance with the Documentation provided by
ChannelPoint; (b) the APIs solely to create Applications that access the APIs;
and (c) the Documentation in support of the licensed activities described in
this Section 2.1. Zurich may not permit any third party to use or access the
APIs or view the documentation thereto, except that Zurich may permit a third
party contractor to use and access the APIs and associated documentation in
order to permit such contractor to create Applications in accordance with the
procedures specified in Section 3.2 below. ChannelPoint and its licensors retain
ownership of the Commerce Exchange Platform, the APIs, the Documentation and all
copies and portions thereof and all rights not expressly granted herein are
reserved by ChannelPoint. Zurich may [...***...] to this Agreement by providing
thirty (30) days advance written notice to ChannelPoint. Deployment of the
Commerce Exchange Platform [...***...] shall be on a mutually agreed upon
deployment schedule. Zurich may use the Commerce Exchange Platform or APIs for
any purpose or in any manner not expressly prohibited in this Agreement.
[...***...]
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[...***...].
2.2 CORE FUNCTIONALITY. The Commerce Exchange Platform will include the
basic core functionality and will initially support the Lines of Business
specified in Exhibit A and as further described in Exhibit G Sections 1 to 4.
Zurich will be solely responsible for the selection and deployment of
Applications [...***...] (subject to the branding requirements of Section 5.1
below) and will have the sole discretion in the selection of Zurich Products
within currently supported LOBs [...***...]. All features and functionality
included in Exhibit A will be included within the initial Commerce Exchange
Platform Fee.
2.3 LICENSE FOR THIRD-PARTY SOFTWARE. The Commerce Exchange Platform
requires the use of Third-Party Software identified in Exhibit B. ChannelPoint
shall assign or sublicense to Zurich and its Affiliates its rights under its
license agreements to the Third-Party Software identified in Exhibit B. With
respect to Third-Party Software that Zurich licenses directly from a third-party
vendor, the license grant in this Section 2 shall be restricted to such extent
required to implement those restrictions imposed on Zurich directly by such
vendor. Zurich is responsible for support and maintenance of the Third-Party
Software licensed from a third party vendor other than the Pass Through Software
listed in Exhibit B under terms Zurich deems reasonable. ChannelPoint may, in
its sole discretion, add, remove or change the Third-Party Software that is part
of the Commerce Exchange Platform. ChannelPoint will assist Zurich in installing
and integrating any replacement Third-Party Software subject to the payment of
fees described in Section 7.1 below.
2.4 RESTRICTIONS. Except as reasonably required to use the Commerce
Exchange Platform in accordance with this Agreement and, except for a reasonable
number of copies for back-up, development or testing purposes, Zurich may not
copy the Commerce Exchange Platform or the APIs. This provision does not
preclude copying of the CEP for development purposes permitted under this
Agreement. Zurich must reproduce and include the copyright notice and any other
notices that appear on the original Commerce Exchange Platform on any permitted
copies and any media therefor. Zurich shall not (and shall not allow any third
party to): (a) decompile, disassemble, or otherwise reverse engineer or attempt
to reconstruct or discover any source code or underlying ideas or algorithms or
file formats or programming of the Commerce Exchange Platform by any means
whatsoever; (b) remove any product identification, copyright or other notices;
(c) provide, lease, lend, use for timesharing purposes or otherwise use or allow
others to use or access the Commerce Exchange Platform, APIs or any portion
thereof to or for the benefit of third parties (excluding the hosting of the
content of Third-Party Carriers [...***...]); (d) modify, incorporate into or
with other Commerce Exchange Platforms or create a derivative work of any part
of the Commerce Exchange Platform, (e) disseminate performance information or
analysis (including, without limitation, benchmarks on the APIs) from any source
relating to the Commerce Exchange Platform or (f) permit or encourage any third
party to do the foregoing. Notwithstanding the foregoing, Zurich may allow third
party consultants to access the APIs, as provided in Section 3.2 below as
necessary to create, maintain and service Applications on behalf of Zurich.
Zurich has no right to receive any source code or design documentation relating
to the Commerce Exchange Platform, [...***...]
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[...***...] and, with respect to documentation, ChannelPoint shall provide
access to design documentation as necessary and appropriate for Zurich to fully
access and use the APIs. If the law of any applicable foreign jurisdiction limit
the enforceability of the foregoing, the restrictions above are limited so that
they prohibit such activity only to the maximum extent such activity may be
prohibited without violating such law. To the extent that applicable law would
permit Zurich to reverse-engineer the Commerce Exchange Platform, Zurich agrees
to negotiate with ChannelPoint in good faith prior to such undertaking on the
terms under which ChannelPoint would grant access to the source code.
2.5 DELIVERY, INSTALLATION AND INSTALLATION SUPPORT. ChannelPoint shall
deliver the initial version of the Commerce Exchange Platform in accordance with
an initial Deployment Schedule agreed to by Zurich and ChannelPoint on or before
forty-five (45) days after the Effective Date. ChannelPoint shall deliver the
Commerce Exchange Platform in electronic format if requested by Zurich. Zurich
acknowledges that, as of the Effective Date, it will be necessary for
ChannelPoint to allocate dedicated resources to support Zurich's [...***...].
ChannelPoint will work with Zurich to determine the number and experience level
of persons who will be required for such support for up to one (1) year from the
Effective Date (these will be located in Colorado). In addition, ChannelPoint
shall designate up to four (4) technicians [...***...] to manage the integration
of the Commerce Exchange Platform. ChannelPoint will use Zurich personnel to
fill technician positions to the extent available and qualified, and, in
consideration of the Knowledge Transfer Fees described in Section 7.7 below,
agrees to train Zurich personnel to take over functions performed by
ChannelPoint personnel [...***...] as soon as this is practical. Zurich shall
compensate ChannelPoint at its standard Professional Services rates for all
installation support services provided under this Section, as specified in
Section 7.6 below. Zurich shall designate one (1) support representative and one
(1) backup representative [...***...] to act as the primary Zurich contact for
the installation of the Commerce Exchange Platform [...***...] and for all
subsequent Professional Services and Maintenance Services relating to the
Commerce Exchange Platform installation [...***...] and comply with the standard
expense reimbursement policies of Zurich or the appropriate Affiliate.
ChannelPoint shall also cooperate with third-party personnel retained by Zurich
in connection with the implementation of the Commerce Exchange Platform or any
Application; provided that such third party personnel shall execute with Zurich
or any applicable Affiliate a non disclosure agreement substantially in the form
of ChannelPoint's standard non-disclosure agreement as provided in Exhibit J
prohibiting the unauthorized use and disclosure of ChannelPoint confidential
information. ChannelPoint personnel assigned to support Zurich installations
shall cooperate with Zurich personnel and shall assist in the instruction and
training of such personnel in [...***...], operation and system administration
of the Commerce Exchange Platform.
2.6 SOURCE CODE ESCROW. ChannelPoint shall deposit the Source Code for the
Commerce Exchange Platform in an escrow account in accordance with the
provisions of the Software Escrow Addendum in Exhibit E.
2.7 AUDITS. ChannelPoint may request Zurich to conduct an internal audit of
its use of the Commerce Exchange Platform or other ChannelPoint software
provided to it under this Agreement and to report to ChannelPoint the results of
such internal audit. In addition,
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ChannelPoint may, no more than once in any calendar year (unless there is
evidence of violation), conduct an audit of Zurich's use of the Commerce
Exchange Platform at all applicable locations to ensure compliance with the
provisions of this Agreement. ChannelPoint shall provide Zurich with reasonable
advance written notice of each audit and shall not unreasonably interfere with
Zurich's business in conduction such audit. ChannelPoint shall bear the costs of
audits conducted pursuant to this Section, except that Zurich will compensate
ChannelPoint for any out-of-pocket expenses and fees of third party auditors
used by ChannelPoint to conduct such audit if the audit shows Zurich to be in
material violation of the terms of this Agreement. ChannelPoint shall ensure
that any third party auditors shall be bound by all confidentiality obligations
set forth in Section 9 of this Agreement.
3. APPLICATION DEVELOPMENT AND DEPLOYMENT
3.1 CHANNELPOINT DEVELOPED AND SUPPLIED APPLICATIONS. In consideration for
the Application Development Fees specified in Section 7.2(a) below, ChannelPoint
may develop Applications on behalf of Zurich or any Affiliate. Such development
shall be in accordance with the terms of a Services Supplement which will
include an agreement on project scope, timing and applicable fee restrictions,
if any. In addition, Zurich may acquire any standard Applications made
commercially available by ChannelPoint for the fees specified in ChannelPoint's
then-current price list.
3.2 ZURICH OR THIRD-PARTY DEVELOPED APPLICATIONS. Zurich may, in its
discretion, develop Applications, or have Applications developed by a third
party, for its own use or the use of any Affiliate, subject to the provisions
set forth in this Section, in consideration for which Zurich shall pay the
Application Developer Fees specified in Section 7.2(b) below. Upon its receipt
of such payment, ChannelPoint shall deliver to Zurich one or more Application
Templates that are then commercially available by ChannelPoint. ChannelPoint
grants Zurich a [...***...] license to use the Application Templates to develop
Applications or to have Third Parties develop Applications under the procedure
specified in this Section 3.2. Zurich may permit third party developers to
access any APIs for this purpose other than APIs that ChannelPoint designates as
"CHANNELPOINT CONFIDENTIAL" or "CHANNELPOINT PROPRIETARY" access to which is
permitted only with ChannelPoint's prior written permission. Zurich shall inform
any such employees and third parties that the APIs are proprietary to
ChannelPoint. All third-party developers shall be bound by written agreement
with Zurich or the applicable Affiliate to maintain the APIs in strict
confidence. In the event that Zurich or an Affiliate requires any third-party
assistance with the development of an Application, ChannelPoint will be allowed
to submit a proposal for such development and ChannelPoint will be engaged to
provide such development services if, in the reasonable judgement of Zurich,
ChannelPoint's proposal is more favorable than or substantially equivalent to
the bid submitted by any other third-party developer in terms of scope, timing,
cost and experience in the development of similar Applications.
3.3 APPLICATION DEPLOYMENT. All Applications that Zurich desires to
integrate with the Commerce Exchange Platform (including any Zurich or
third-party-developed Applications) require a deployment license from
ChannelPoint. Prior to such deployment, Zurich will notify ChannelPoint of the
target deployment date and specify the Business Unit(s), [...***...] and the
Application Categories (as defined in Section 7.2(b) below) for which such
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Application will be deployed. ChannelPoint shall grant Zurich a license for such
deployment upon payment of the applicable Application Deployment Fee specified
in Section 7.2(c) below.
4. UPGRADES, ENHANCEMENTS, SUPPORT AND OTHER SERVICES
4.1 MAINTENANCE SERVICES.
(a) Commerce Exchange Platform Maintenance. In consideration of the
Maintenance Service Fees (as described in Section 7.5), ChannelPoint shall
provide the maintenance and support services to Zurich described in Exhibit D
("MAINTENANCE SERVICES"), including by providing upgrades to the Commerce
Exchange Platform as and when made commercially available by ChannelPoint while
Maintenance Services are being provided by ChannelPoint ("PLATFORM UPGRADES").
Upon delivery to Zurich, Platform Upgrades shall be included within the
definition of Commerce Exchange Platform. Zurich agrees that it will procure,
and ChannelPoint agrees to provide, Maintenance Services for a minimum
[...***...] period with renewal periods of [...***...] each at Zurich's
discretion provided that the Maintenance Service Fees for any renewal period
shall not increase by more than [...***...].
(b) Application Maintenance. ChannelPoint shall provide Maintenance
Services for any Applications developed by ChannelPoint or provided to Zurich or
its Affiliates by ChannelPoint in accordance with the terms set forth in Exhibit
D. Such Maintenance Services shall be limited to the correction of errors or
defects in any supported Application that cause a program to fail to perform in
accordance with ChannelPoint's specifications, telephone support and upgrades
and updates to non-custom features of such Applications. The Maintenance
Services will be renewable [...***...] after Application deployment upon payment
of the Maintenance Service Fee then due; provided that with respect to such
Applications, Zurich agrees that it will procure Maintenance Services for at
least [...***...] and ChannelPoint agrees to provide Maintenance Services for as
long as Maintenance Services are provided for the Commerce Exchange Platform.
4.2 COMMERCE EXCHANGE PLATFORM EXTENSIONS. In the event that Zurich desires
to extend the Commerce Exchange Platform to include additional LOBs, Zurich
shall submit a Request for Extension ("RFE") to ChannelPoint, identifying the
new Line of Business and specifying in reasonable detail the functionality
required in the new LOB. ChannelPoint shall, within a reasonable time, respond
to the RFE by submitting an LOB Proposal that includes the additional Commerce
Exchange Platform Fees for the new LOB and an estimate of the delivery and
deployment dates. Upon agreement on terms, Zurich and ChannelPoint will execute
an LOB addendum based upon the LOB Proposal, which will become part of this
Agreement. ChannelPoint will evaluate the LOB Proposal and determine pricing
based upon the classification of the requested LOB in accordance with the
procedures and limitations specified in Exhibit G. ChannelPoint agrees to
develop any proposed new LOBs that are within the scope of ChannelPoint's
Platform Roadmap, and current resource constraints, subject to agreement on
terms and conditions. The Platform Roadmap will be provided to Zurich and
updated by ChannelPoint from time-to-time during the term of this Agreement.
ChannelPoint agrees not to unreasonably reject the development of other LOBs.
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4.3 OTHER PROFESSIONAL SERVICES. In consideration of Zurich's payment of
agreed upon Professional Service Fees (as described in Section 7.6),
ChannelPoint will perform any other mutually agreed consulting services. All
such services shall be performed in accordance with the applicable Service
Supplement. ChannelPoint may subcontract any Professional Services provided
under this Agreement to its third party consulting partners provided that (i)
ChannelPoint remains solely responsible for the services provided by such third
parties and for such third parties' compliance with the terms of this Agreement,
and that (ii) ChannelPoint warrants and represents that each such third party
(and each individual who contributes or participates in the conception and
development of the deliverables under any Services Supplement hereto, provides
Professional Services hereunder or otherwise is given access to Zurich
Confidential Information) shall have first executed a consulting agreement that
includes (A) an appropriate instrument of assignment which accords ChannelPoint
full, effective and exclusive ownership rights in and to all intellectual
property arising therefrom that is assigned to Zurich under this Agreement; (B)
an agreement protecting Zurich's Confidential Information; and (C) a
representation that each third party has executed with its respective employees,
agents, consultants and contractors "work-for hire" agreements (or appropriate
instruments of assignment) substantially in the form of Exhibit H. ChannelPoint
shall maintain copies of any such agreements with third party developers (but
not any employees, agents consultants or contractors of such third party) in its
records and Zurich shall have the right to examine, audit and copy such records,
either directly or through its representatives, at any time upon reasonable
notice during ChannelPoint's normal business hours.
4.4 SERVICE SUPPLEMENTS. All Professional Services performed by
ChannelPoint under this Agreement shall be governed by the terms of a separate
Services Supplement to this Agreement. The specific scope, milestones,
deliverables, fee and expense restrictions, if any, and other economic
arrangements and special terms and conditions applicable to any Professional
Service projects will be specified in a Statement of Work attached to such
Services Supplement. Unless otherwise specified in a Services Supplement or
applicable Statement of Work, all Professional Services will be performed on a
time and materials basis, plus expenses, as specified in Section 7.6 below.
Zurich agrees that any Professional Services to be provided directly to Zurich
will be governed by the Services Addendum attached hereto as Exhibit F. The
terms governing any Professional Services to be provided to any Affiliate by
ChannelPoint will be substantially similar to those set forth in the Services
Addendum, and any modifications made to the terms and conditions of the Services
Addendum shall be specified in a Statement of Work executed by the Affiliate and
ChannelPoint.
5. BRANDING; MARKETING AND OTHER COOPERATIVE ACTIVITIES
5.1 BRANDING. [...***...] licensed to Zurich shall be identified and
branded in accordance with Zurich's or an Affiliate's discretion, provided that
all permitted uses [...***...] by or on behalf of Zurich (excluding any Zurich
Products) shall bear co-branding of ChannelPoint, in the form agreed upon by
Zurich or the applicable Affiliates and ChannelPoint, such as "POWERED BY
CHANNELPOINT" with ChannelPoint logos and/or related marking.
5.2 [...***...]. Zurich agrees to serve as ChannelPoint's [...***...] by
using commercially reasonable efforts to (a) provide to ChannelPoint complete
and timely input on
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products and services provided by ChannelPoint under this Agreement, and (b) at
Zurich's discretion, provide input from Zurich brokers, agents and customers
[...***...], including customer service comments and complaints. As
ChannelPoint's [...***...], Zurich will be entitled to (i) participate in beta
test programs for future Commerce Exchange Platform enhancements, (ii) access
certain new releases of the Commerce Exchange Platform designated by
ChannelPoint prior to their being made generally available by ChannelPoint to
other ChannelPoint customers, and (iii) advise ChannelPoint of Zurich's
preferences and suggestions for the future direction of [...***...] and the
Commerce Exchange Platform generally to help retain Zurich's "first mover"
advantages.
5.3 JOINT PRESS RELEASE. The parties will cooperate in good faith in
creating a mutually agreed-upon joint press release or independent press
releases and other public correspondence concerning this Agreement for
simultaneous international, national and local release as soon as possible after
the Effective Date. Neither party will issue a press release or otherwise
publicize the terms of this Agreement without the prior written consent of the
other party.
6. CONTENT AND TECHNOLOGY LICENSING AND OWNERSHIP
6.1 ZURICH CONTENT AND LICENSING. Zurich or its Affiliates have acquired
and developed, and intends to continue to acquire and develop, a body of
insurance product and other financial services content, algorithms, procedures
and policy materials which Zurich or its Affiliates will, at their own expense,
generate and deliver to ChannelPoint to be included in the Commerce Exchange
Platform in a format agreed to by the parties (the "ZURICH CONTENT"). Zurich
hereby grants ChannelPoint during the term of this Agreement a worldwide license
with right to sublicense to reproduce, distribute, publicly perform, publicly
display and digitally perform the Zurich Content via the Internet solely as part
of any ChannelPoint Open Marketplaces within the Commerce Exchange Platform on
the written terms agreed upon with Zurich or the applicable Affiliate.
ChannelPoint may make a reasonable number of archival copies of the Zurich
Content. Title to and ownership of all intellectual property rights of the
Zurich Content shall remain with Zurich, its Affiliates or its or their third
party licensors. Except for any transformation required to convert the content
to ChannelPoint's proprietary data format, ChannelPoint shall not modify or
alter the Zurich Content without Zurich's prior written consent.
6.2 ZURICH CONTENT MANAGEMENT. Zurich will be solely responsible for
creating, managing, editing, reviewing, testing, deleting and otherwise
controlling the Zurich Content via certain tools provided to Zurich by
ChannelPoint as part of the Commerce Exchange Platform that enable Zurich to
implement and manage all changes to the Zurich Content as more particularly
described in Exhibit A (the "EXCHANGE TOOLS"). ChannelPoint hereby grants Zurich
a [...***...] license to use the Exchange Tools solely to manage the Zurich
Content. Upon conversion of the Zurich Content and any updates thereto, it shall
be Zurich's responsibility to verify that all rating and similar algorithms that
are part of the Zurich Content produce correct results. Zurich shall be solely
responsible for any liability associated with the use, publication and
distribution of the Zurich Content, except to extent such content is modified by
ChannelPoint without Zurich's prior written approval.
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6.3 CHANNELPOINT CONTENT AND CARRIER PLUG-INS. ChannelPoint has acquired
and developed, and intends to continue to acquire and develop independent of the
Zurich Content, a body of content, including without limitation, insurance
product content, rules, algorithms, procedures and policy materials (the
"CHANNELPOINT CONTENT") comprised of materials that were either licensed from
Third-Party Carriers to ChannelPoint, or developed by ChannelPoint. Zurich and
ChannelPoint intend that certain of the ChannelPoint Content may be made
available [...***...] as mutually agreed upon by Zurich and ChannelPoint in
accordance with Section 7.3 below. In this event, the parties agree that
ChannelPoint shall have the right to solicit Third-Party Carriers to make their
content available [...***...] to enable electronic distribution of such
carrier's insurance or financial service products [...***...] ("CARRIER
PLUG-INS") subject to Exchange Service Fees shared by ChannelPoint and Zurich
pursuant to Section 7.3 below.
6.4 OWNERSHIP. Ownership of ChannelPoint Property and Zurich Property shall
be governed by the terms and conditions stipulated hereinafter, those set forth
in Section 5 of the Services Addendum contained in Exhibit F as well as, where
applicable, [...***...]. Except for the terms and conditions set forth in
Section 5(c) of the Services Addendum, the terms and conditions agreed
[...***...] shall prevail in case of any contradiction with those set forth
hereinafter or in Section 5(a) and (b) of the Services Addendum with respect to
any activities or intellectual property described in such provisions
[...***...].
(a) ChannelPoint Property. ChannelPoint will retain sole ownership of
all intellectual property rights in and to [...***...].
(b) Zurich Property. Zurich will retain sole ownership of all
intellectual property rights in and to [...***...].
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(c) [...***...].
6.5 DATA ACCESS. Zurich shall own all right, title and interest in and to
all use and traffic data concerning customers [...***...], including but not
limited to impression data, usage summaries and click through activity
("IMPRESSION DATA"). ChannelPoint and Zurich shall cooperate to implement the
appropriate procedures to comply with applicable data privacy and protection
laws and regulations relevant to the Impression Data. Subject to the foregoing,
each Affiliate may provide ChannelPoint with periodic reports of Impression
Data, in a format and with a frequency and upon terms to be agreed upon by the
parties, and ChannelPoint may use, re-purpose and commercialize Impression Data
in an aggregate and/or generic form that does not identify any particular
customer as provided by such agreement. In return, ChannelPoint shall provide
Zurich at no charge, on a monthly basis, with certain mutually agreed upon data
products and reports that are made commercially available by ChannelPoint.
7. FEES AND PAYMENT.
7.1 COMMERCE EXCHANGE PLATFORM FEES.
(a) Fees for CEP and New LOBs. In consideration of the rights granted
to Zurich hereunder, Zurich shall pay to ChannelPoint a Commerce Exchange
Platform Fee of [...***...] payable in accordance with the following schedule:
PAYMENT MILESTONE
------- ---------
[...***...] Contract Execution
[...***...] Initial Deployment Date
[...***...] Data Center Deployment Date
All payments shall be by wire transfer to an account designated by ChannelPoint
and shall become non-refundable upon receipt, subject to refunds for warranty
claims under Section 10.3. Thereafter, Zurich shall pay ChannelPoint Commerce
Exchange Platform Fees for new LOBs added by ChannelPoint pursuant to Section
4.2 above, in accordance with the terms of the LOB Addendum. The Commerce
Exchange Platform Fees shall include all applicable license fees for the
Third-Party Software [...***...] in which the Commerce Exchange Platform is
deployed in the first five (5) years of this Agreement up to a maximum of
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12.
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[...***...]. The configuration of the Commerce Exchange Platform and the
Third-Party Software [...***...] will be mutually agreed upon by the parties.
ChannelPoint shall invoice Zurich separately for Third-Party Software license
fees in excess of these limits and for Third-Party Software [...***...].
(b) Fee Adjustments.
(i) In the event that, as a result of any transaction or series of
transactions, a third party, or any party related to such third party, becomes a
Zurich Affiliate or Business Unit [...***...] (an "ACQUISITION"), Zurich shall
pay an acquisition fee equal to the then-current aggregate Commerce Exchange
Platform Fees multiplied by the ratio of the Acquired Revenue Base to the
Existing Revenue Base (the "ACQUISITION FEE"). Zurich shall notify ChannelPoint
in writing in advance of any Acquisition and provide a calculation of the
Existing Revenue Base and Acquired Revenue Base with data supporting such
calculations.
(ii) For purposes of this Section, the "EXISTING REVENUE BASE"
means the total revenue on sales of existing Zurich Products [...***...] in any
supported LOB as calculated at the end of Zurich's most-recent fiscal year;
provided that the Existing Revenue Base will be increased prior to the end of
Zurich's fiscal year if (A) Zurich adds a new LOB to the Commerce Exchange
Platform, or (B) Zurich completes an Acquisition of [...***...] or more in total
revenue generated by the acquired entity prior to the Acquisition. For purposes
of this calculation, the Existing Revenue Base is deemed to be [...***...] as of
the Effective Date. The "ACQUIRED REVENUE BASE" means the total revenue
generated prior to the Acquisition by the acquired entity or entities on sales
of existing products [...***...] in all supported LOBs. The Acquisition Fee
payable under this Section 7.1(b) shall be added to the Commerce Exchange
Platform Fees for purposes of calculating subsequent New Acquisition Fees and
Exchange Maintenance Service Fees under Section 7.5 below.
(iii) In the event that Zurich or an Affiliate divests any
Affiliate or Business Unit, such that the divested entity is no longer an
Affiliate, a Business Unit or a member of a Business Unit under this Agreement,
Zurich shall be entitled to a credit to be applied against future Acquisition
Fees equal to the then-current aggregate Commerce Exchange Platform Fees
multiplied by the ratio of the Divested Revenue Base to the Existing Revenue
Base. The "DIVESTED REVENUE BASE" means the total revenue generated by the
divested entity or entities on sales of existing products [...***...] in all
supported LOBs prior to the divestiture.
7.2 APPLICATION FEES.
(a) Application Development Fee. [...***...] In addition, Zurich may
purchase a license to an Application made commercially available by
ChannelPoint, at ChannelPoint's standard
* CONFIDENTIAL TREATMENT REQUESTED
13.
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published rate card for such Application or a price to be negotiated with the
applicable Affiliate on a case-by-case basis.
(b) Developer Fees. Zurich shall pay [...***...] for each individual
developer named by Zurich who is granted access to the APIs as specified
pursuant to Section 3.2 above. Zurich may transfer the developer license to an
alternate named individual upon the reassignment of the prior named individual
by Zurich or upon termination of the prior named individual's employment or
consultancy with Zurich.
(c) Application Deployment Fee.
(i) Fee Calculation. For each Application that Zurich incorporates
within the Commerce Exchange Platform, including Applications developed by
ChannelPoint, Zurich or any third party on behalf of Zurich, or any commercially
available Application provided by ChannelPoint, each Business Unit that will
access the Application [...***...] shall pay ChannelPoint an Application
Category Deployment Fee equal to: (A) [...***...] for each Category I Business
Unit; (B) [...***...] for each Category II Business Unit; (C) [...***...] for
each Category III Business Unit; provided that each Business Unit shall be
responsible for at most three (3) Application Category Deployment Fees, which
will cover all deployment fees ever to be charged such Business Unit for
Applications deployed in each of the three Application Categories: business to
business, business to consumer, and workplace. Prior to deployment of an
Application, Zurich and ChannelPoint will mutually determine the appropriate
categorization of the Application.
(ii) Business Unit Classifications. For purposes of calculating the
Application Deployment Fee: (A) a "CATEGORY I BUSINESS UNIT" means a Business
Unit that generates gross revenue from sales of Zurich Products of [...***...]
or less per year; (B) a "CATEGORY II BUSINESS UNIT" means a Business Unit that
generates gross revenue from sales of Zurich Products of greater than
[...***...] but not more than [...***...] per year; and (C) a "CATEGORY III
BUSINESS UNIT" means a Business Unit that generates gross revenue from sales of
Zurich Products of greater than [...***...] per year. The fee paid by a Business
Unit will be determined as of the date an Application is first deployed within
the Application Category.
7.3 EXCHANGE SERVICE FEES.
(a) Eligible Products. Zurich shall pay an Exchange Service Fee,
calculated as provided in subsection (b) below, with respect to any [...***...]
products provided by Third-Party Carriers which are supported by the features
and functionality of the Commerce Exchange Platform ("THIRD-PARTY PRODUCTS")
except for any Third-Party Products that are (i) sold by a particular Affiliate
prior to the Effective Date and any product that Zurich adds to replace such
prior product, (ii) not competitive with any Zurich Products within a supported
LOB [...***...], or (iii) used solely for the purpose of comparison with Zurich
Products [...***...] where such products are not administered or managed using
* CONFIDENTIAL TREATMENT REQUESTED
14.
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the Commerce Exchange Platform and neither Zurich, an Affiliate nor a Business
Unit receives any compensation from the Third-Party Carrier ; provided, however,
that an Exchange Service Fee shall be due for any Third-Party Products that are
administered, managed or distributed directly or indirectly [...***...] that
include one or more insurance or other financial service products within a
general or competitive product category [...***...] whether or not such
Third-Party Products are competitive with the Zurich Products offered through
such sites. In addition, Zurich shall pay Exchange Service Fees for any
Third-Party Products that are included within the Carrier Plug-Ins provided by
ChannelPoint.
(b) Service Fee Calculation. The Exchange Service Fee for any of the
Third-Party Products identified above shall be payable as follows: (i) if Zurich
is the Market Maker (as defined below), ChannelPoint will receive [...***...]
and Zurich [...***...] of the total aggregate fee provided to Zurich by such
Third-Party Carrier for such sale (the "THIRD-PARTY COMMISSIONS"); or (ii) if
ChannelPoint is the Market Maker (as defined below), ChannelPoint will receive
[...***...] and Zurich [...***...] of the total aggregate Third-Party
Commissions provided to ChannelPoint by such Third-Party Carrier for such sale.
For purposes of this Section, a "MARKET MAKER" means the party that, pursuant to
an agreement with the Third-Party Carrier, is granted the right to manage,
administer or distribute the Third-Party Products. The Exchange Service Fees
under this subsection (b) accrue upon receipt of any payment by Zurich under (i)
or ChannelPoint under (ii) and shall be payable on a calendar quarterly basis in
accordance with Section 7.9 below.
7.4 DISTRIBUTION FEES FOR SALE OF ZURICH PRODUCTS. Zurich shall pay to
ChannelPoint Distribution Fees for all Zurich Products sold through an Open
Marketplace at the rates and on other terms and conditions agreed to on a
Affiliate-by-Affiliate basis.
7.5 MAINTENANCE SERVICE FEES. In consideration for the Maintenance Services
provided by ChannelPoint, Zurich shall pay annual Exchange Maintenance Service
Fees equal to [...***...] of the total Commerce Exchange Platform Fees. In the
event that ChannelPoint must pay maintenance fees for Third-Party Software
[...***...] of the applicable license fee, ChannelPoint will invoice Zurich for
such excess fees. In consideration for the Maintenance Services provided by
ChannelPoint for any ChannelPoint-developed or supplied Application to an
Affiliate, Zurich (or the applicable Affiliate) shall pay ChannelPoint an
Application Maintenance Service Fee equal to [...***...] of the Application
Development Fee plus the Application Deployment Fees specified in Section 7.2(a)
above paid by the applicable Affiliate. The Exchange Maintenance Service Fees
will be established on the delivery of the Commerce Exchange Platform and on
each anniversary of such date, subject to pro rata adjustment based on increases
in the Commerce Exchange Platform Fees during the prior year. The Application
Maintenance Service Fees will be established upon deployment of each Application
and upon each anniversary date of such deployment. All Maintenance Service Fees
shall be paid on the basis of a calendar year in accordance with the Maintenance
Service Fee schedule attached hereto as Exhibit I.
7.6 OTHER PROFESSIONAL SERVICE FEES. Zurich shall pay fees for all
Professional Services provided to Zurich by ChannelPoint hereunder at
ChannelPoint's standard rates
* CONFIDENTIAL TREATMENT REQUESTED
15.
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pursuant to the applicable Services Supplement, unless otherwise agreed to in
such Services Supplement or any applicable Statement of Work. Zurich shall also
reimburse ChannelPoint for reasonable travel, lodging and meal expenses incurred
for travel outside of ChannelPoint's site and which ChannelPoint is required to
incur in performing such services under this Agreement.
7.7 KNOWLEDGE TRANSFER FEES. ChannelPoint shall permit Zurich to attend any
regularly-scheduled training classes, on a space-available basis, for a
Knowledge Transfer Fee to be mutually agreed upon by ChannelPoint and Zurich.
The Knowledge Transfer Fee will include curriculum, training materials and
certification.
7.8 TAXES. All fees owed by Zurich to ChannelPoint are exclusive of, and
Zurich shall pay, all sales, use, excise and other taxes that may be levied upon
Zurich in connection with this Agreement, or other transactions contemplated
under this Agreement, except for employment taxes and taxes based on
ChannelPoint's net income.
7.9 PAYMENTS. ChannelPoint will invoice Zurich or, if applicable, an
Affiliate for all fees payable to ChannelPoint under the terms of this Section
7.9, except for any Exchange Service Fees that are due and payable at the
Effective Date, such invoice specifying in detail as required by Zurich or the
appropriate Affiliate the supporting data on which such fee is based.
[...***...] Zurich shall pay each invoice within thirty (30) days from the
receipt of invoice. With respect to Exchange Service Fees due under Section 7.4
above, the party responsible for making payment shall submit all fees due within
fifteen (15) days of the end of each calendar quarter along with the report
specified in Section 7.10 below.
7.10 REPORTING AND RIGHTS. Each party shall keep reasonably accurate and
complete books and records as necessary to verify the Third-Party Commissions
under Section 7.3(b) above. Each payment of Exchange Service Fees based upon
Third-Party Commissions shall include a report specifying the Third-Party
Carrier, the insurance product sold and the amounts received as Third-Party
Commissions during the applicable quarter. Each party will have the right to
engage, at its own expense, an independent auditor to examine the other party's
records once per year as may be necessary to determine the correctness of any
report or payment made under this Agreement, such audits to be conducted during
normal business hours and upon reasonable advanced notice to the other party.
The party requesting such examination by an independent auditor shall ensure
that any such auditor shall be bound by all confidentiality obligations set
forth in Section 9 of this Agreement.
7.11 [...***...]
* CONFIDENTIAL TREATMENT REQUESTED
16.
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7.12 EXPENSE REIMBURSEMENT. In regard to all expenses for which
ChannelPoint claims reimbursement under this Agreement, all ChannelPoint
personnel shall comply with the standard expense reimbursement policies of
Zurich or the applicable Affiliate that are provided to ChannelPoint.
8. TRADEMARKS
8.1 LICENSE TO ZURICH MARKS. Zurich grants to ChannelPoint a non-exclusive,
nontransferable, royalty-free, worldwide license during the term of this
Agreement to use Zurich's Marks: (i) on any Open Marketplaces to the Commerce
Exchange Platform to denote that the Zurich Content is owned by Zurich; and (ii)
to promote [...***...] the Zurich Content in promotional materials including but
not limited to brochures, presentations, advertising, and marketing. The
foregoing grant is subject to the provisos that: (A) ChannelPoint shall at all
times use the Zurich Marks in accordance with Zurich's standard trademark usage
guidelines provided to ChannelPoint; (B) ChannelPoint shall not engage in any
action associated with the Zurich Marks that adversely affects the good name,
good will, image or reputation of Zurich; and (C) ChannelPoint shall obtain
Zurich's or the applicable Affiliate's prior written consent of any commercial
use of the Zurich Marks. ChannelPoint agrees that all use of the Zurich Marks
hereunder shall inure solely to the benefit of Zurich. No other rights or
licenses to the Zurich Marks are granted to ChannelPoint hereunder except as
expressly provided in this Section 8.1.
8.2 LICENSE TO CHANNELPOINT MARKS. ChannelPoint grants to Zurich a
non-exclusive, nontransferable, royalty-free, worldwide license during the term
of this Agreement to use the ChannelPoint Marks (i) [...***...] bearing
ChannelPoint's co-branding and to promote Zurich's relationship with
ChannelPoint in promotional materials including but not limited to brochures,
presentations, advertising, and marketing; and (ii) to publicly display
hypertext links to the Commerce Exchange Platform from appropriate areas
[...***...] and Zurich's Web site; provided that: (A) Zurich shall at all times
use the ChannelPoint Marks in accordance with ChannelPoint's standard trademark
usage guidelines provided to Zurich; and (B) Zurich shall not engage in any
action associated with the ChannelPoint Marks that adversely affects the good
name, good will, image or reputation of ChannelPoint. Zurich agrees that all use
of the ChannelPoint Marks hereunder shall inure solely to the benefit of
ChannelPoint. No other rights or licenses to the ChannelPoint Marks are granted
to Zurich hereunder except as expressly provided in this Section 8.2.
9. CONFIDENTIALITY
9.1 DEFINITION. "Confidential Information" means confidential and
proprietary information which relates to Zurich's or its Affiliates' or
ChannelPoint's business, products and services, including but not limited to
data, trade secrets, discoveries, ideas, concepts, know-how,
* CONFIDENTIAL TREATMENT REQUESTED
17.
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techniques, software, business activities and operations, reports, studies and
other technical and business information, including, with respect to Zurich,
personal policyholder information and, with respect to ChannelPoint, technical
and business information concerning the Commerce Exchange Platform and
Documentation. The parties agree that the terms of this Agreement shall be
considered the "CONFIDENTIAL INFORMATION" of each party. Notwithstanding the
foregoing, Confidential Information shall not include any information which (a)
is known by the receiving party at the time of disclosure, from a source other
than the other party, to be free of any obligation to keep it confidential, as
evidenced by credible evidence; (b) is or becomes publicly available through
authorized disclosure by the owner of such information; (c) is rightfully
obtained by the receiving party from a third party who has the right to transfer
or disclose it; or (d) is independently developed by the receiving party without
reference to Confidential Information of the other party.
9.2 NON-DISCLOSURE. Each party shall keep in confidence for a period of
five (5) years after termination or expiration of this Agreement all
Confidential Information of the other party and will not directly or indirectly
disclose to any third party or use for its own benefit, or use for any purpose
other than the performance of its obligations under this Agreement, any
Confidential Information it receives from the other party and, in the case of
Zurich, from its Affiliates. Each party shall use reasonable care to protect the
other party's Confidential Information, in no event less than the same degree of
care it would employ with respect to its own information of like importance
which it does not desire to have published or disseminated. Each party may make
Confidential Information of the other party available to those of its employees,
contractors or agents who have a need to know such information for purposes of
this Agreement and who are subject to binding use and disclosure restrictions at
least as protective as those set forth herein. Notwithstanding the foregoing,
either party may make disclosures as lawfully required or requested by a court
of law, or any governmental entity or agency in connection with (a) seeking any
governmental or regulatory approval (b) a judicial proceeding or (c) any filing
required by the Securities and Exchange Commission of the United States or any
similar authority in any other country, provided that reasonable measures are
taken to limit such disclosure and to obtain confidential treatment or a
protective order and the receiving party promptly notifies the disclosing party
of such disclosure and allows the disclosing party to participate in such
efforts. In addition, either party may disclose the terms of this Agreement to
potential investors or acquisition partners in connection with such party's due
diligence in connection with a proposed financing or acquisition, provided that
such party has executed an agreement prohibiting unauthorized use or disclosure
of the terms of this Agreement.
9.3 REMEDIES. Zurich and ChannelPoint each agree that any breach of this
Section 9 could cause irreparable harm or injury to the other party
significantly in excess of the value received by such other party pursuant to
this Agreement, and that such other party shall be entitled to declaratory,
injunctive or other equitable relief, in addition to any other legal or
equitable remedies it may have, for any such breach.
10. WARRANTIES AND COVENANTS
10.1 ZURICH WARRANTIES. Zurich represents and warrants that:
18.
19
(a) Neither the Zurich Content nor any portion thereof that Zurich
provides or makes available in connection with [...***...] or an Open
Marketplace will: (i) infringe or violate any third party's copyright, patent,
trademark, trade secret or other proprietary rights; (ii) violate any law,
statute, ordinance or regulation, including without limitation the laws and
regulations governing export control; (iii) be defamatory or trade libelous;
(iv) be pornographic or obscene; or (v) to the extent such may contain code or
other electronic files, contain viruses, trojan horses, worms, time bombs,
cancelbots or other similar harmful or deleterious routines. In the event of any
breach of subclauses (i) through (iv) hereunder, ChannelPoint's sole remedy and
Zurich's sole obligation shall be the indemnity provided under Section 11.1
below.
(b) Zurich will promptly notify ChannelPoint if it receives any
complaint or if it is served with any paper or has knowledge of any legal or
administrative action, investigations or proceeding against ChannelPoint or
involving ChannelPoint.
10.2 CHANNELPOINT WARRANTIES AND DISCLAIMERS.
(a) Independent Party. In connection with its obligations under this
Agreement, ChannelPoint represents and warrants that it will not hold itself out
as an employee, partner, joint venturer or officer of Zurich; and it will
promptly notify Zurich if it receives any complaint or if it is served with any
paper or has knowledge of any legal or administrative action, investigations or
proceeding against Zurich or involving Zurich.
(b) Limited Warranty and Disclaimer.
(i) Functionality. ChannelPoint warrants and represents that, for a
period of ninety (90) days from the Initial Deployment Date, the Commerce
Exchange Platform, including Third-Party Software, when operated in conformance
with this Agreement and the applicable Documentation, will materially conform to
the "SPECIFICATIONS" title of the Documentation, as delivered to Zurich. This
warranty covers only defects specifically identified by Zurich in a written
defect report submitted to ChannelPoint during the foregoing warranty period.
Zurich acknowledges that the proper operation of the Commerce Exchange Platform
requires certain minimum hardware and software configurations and resources of
the computer server on which it operates, as specified by ChannelPoint in the
Documentation, and the warranty provided in this Section 10.2(b)(i) is void if
Zurich fails to provide these minimum resources. This warranty covers only
problems reported to ChannelPoint during the foregoing warranty period.
(ii) Ownership. ChannelPoint warrants and represents that it owns
all right, title and interest in or has the right to license to Zurich any
ChannelPoint Property that is licensed to Zurich under this Agreement and that
such ChannelPoint Property (solely in the form delivered to Zurich) will not (A)
infringe or violate any third party's copyright, patent, trademark, trade secret
or other proprietary rights; or (B) contain viruses, trojan horses, worms, time
bombs, cancelbots or other similar harmful or deleterious routines.
(iii) Content. ChannelPoint warrants and represents that any
ChannelPoint Content provided to Zurich hereunder will not (A) infringe or
violate any third
* CONFIDENTIAL TREATMENT REQUESTED
19.
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party's copyright, patent, trademark, trade secret or other proprietary rights;
(B) violate any law, statute, ordinance or regulation, including without
limitation the laws and regulations governing export control; (C) be defamatory
or trade libelous; (D) be pornographic or obscene; or (E) to the extent such may
contain code or other electronic files, contain viruses, trojan horses, worms,
time bombs, cancelbots or other similar harmful or deleterious routines.
(iv) Year 2000. ChannelPoint warrants and represents that any
ChannelPoint Property that is licensed to Zurich or its Affiliates (in the form
delivered to Zurich), when operated in accordance with the Documentation, will
be Year 2000 Compliant (as defined below). Zurich acknowledges that the
capability of the ChannelPoint Property to manage and manipulate date-related
information appropriately depends on the quality of information imported or
input, including the presence of adequate indicators of century in such
information. ChannelPoint disclaims any warranty relating to the quality of any
such imported or input information. "YEAR 2000 COMPLIANT" means the ability to
provide specific dates and calculate spans of dates, and to record, store,
process and provide true and accurate dates and calculations for dates and spans
of dates within and between the twentieth and twenty-first centuries prior to,
including and following January 1, 2000, including by: (i) correctly processing
correctly inputted day and date data; (ii) recognizing January 1, 2001 as a
valid date; (iii) recognizing the year 2000 as a leap year having 366 days, and
correctly processing February 29, 2000 as a valid leap year date; (iv) employing
only four-digit year internal year representations; and (v) providing an
interface to Zurich-provided programs that translate external two-digit year
representations into four-digit year representations in a manner specified in
the Documentation. Any claims brought under this Section 10.2(b)(iv) must be
brought by March 30, 2004.
(v) Professional Services. ChannelPoint warrants the quality and
timeliness of any Professional Services as explicitly provided in any Services
Supplement.
10.3 EXCLUSIVE REMEDIES. ChannelPoint's sole liability and Zurich's sole
remedy for any breach of the warranties specified in Section 10.2(b)(i-iv)
(except as otherwise provided herein) shall be at ChannelPoint's sole discretion
to (a) promptly use diligent efforts to revise the applicable ChannelPoint
Property such that it conforms with the foregoing warranties, (b) to replace the
non-conforming ChannelPoint Property with ChannelPoint Property that conforms
with the foregoing warranties or, if ChannelPoint cannot deliver such
replacement within a reasonable time after Zurich' written notice of such
non-compliance, (c) refund the Commerce Exchange Platform Fees already paid by
Zurich less an amount based upon Zurich's prior use of the Commerce Exchange
Platform equal to the Commerce Exchange Platform Fee prorated on a straight-line
basis over an assumed five-year product life.
10.4 DISCLAIMER. EXCEPT FOR THE FOREGOING, THE COMMERCE EXCHANGE PLATFORM
IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND AND CHANNELPOINT HEREBY
EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER
EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE COMMERCE EXCHANGE PLATFORM
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. CHANNELPOINT DOES NOT WARRANT OR REPRESENT
THAT THE USE OF THE COMMERCE EXCHANGE PLATFORM WILL BE UNINTERRUPTED OR
ERROR-FREE OR MAKE ANY OTHER REPRESENTATIONS
20.
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REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE COMMERCE EXCHANGE PLATFORM
OR WRITTEN MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR
OTHERWISE. Zurich understands that ChannelPoint is not responsible for and will
have no liability for hardware, Third-Party Software, or other items or any
services provided by any persons other than ChannelPoint, except as otherwise
provided in Section 10.2(b)(i) above.
11. INDEMNITIES
11.1 ZURICH INDEMNITY. Zurich shall indemnify, defend and hold harmless
ChannelPoint from and against any and all damages, losses, fees, expenses,
penalties and costs (including reasonable attorneys' fees, costs and
disbursements) arising as a direct result of all claims, suits or proceedings
brought by any third party against ChannelPoint or its directors, officers,
agents and employees arising from (a) any breach of the representations,
warranties or covenants in Section 10.1, or (b) any claims relating to the
provision of the insurance services offered by Zurich or any claims by Zurich's
customers or representatives [...***...], except to the extent such claim arose
out of any breach of this Agreement by ChannelPoint. As a condition of the
foregoing, ChannelPoint shall (i) promptly notify Zurich of any indemnifiable
claim; (ii) give Zurich sole control over the defense and settlement of such
claims; and (iii) provide reasonable cooperation and assistance to Zurich in
conducting its defense, at Zurich's expense; provided, however, that
ChannelPoint may participate in the defense at its expense; and ChannelPoint's
advance written approval is required for any settlement that imposes any
executory obligation on ChannelPoint and does not unconditionally release
ChannelPoint.
11.2 CHANNELPOINT INDEMNITY.
(a) Indemnity. ChannelPoint shall indemnify, defend and hold harmless
Zurich and any of its Affiliates from and against any and all damages, losses,
fees, expenses, penalties and costs (including reasonable attorneys' fees, costs
and disbursements) arising as a direct result of all claims, suits or
proceedings brought by any third party against Zurich or any Affiliate or their
respective directors, officers, agents and employees arising from (a) any
viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful
or deleterious routines transmitted to Zurich as a result of ChannelPoint's
failure to scan any files, data or other content provided to Zurich using the
most current commercially available version of one of the five (5) best selling
virus checking software; (b) any claims that use of the ChannelPoint Property by
Zurich or any Affiliate in conformance with this Agreement infringes any third
party intellectual property right or privacy right, except to the extent such
claim arose out of any breach of this Agreement by Zurich. As a condition of the
foregoing, Zurich shall (i) promptly notify ChannelPoint of any indemnifiable
claim; (ii) give ChannelPoint sole control over the defense and settlement of
such claims; and (iii) provide reasonable cooperation and assistance to
ChannelPoint in conducting its defense, at ChannelPoint's expense; provided,
however, that Zurich may participate in the defense at its expense and Zurich's
advance written approval is required for any settlement that imposes any
executory obligation on Zurich and does not unconditionally release Zurich.
* CONFIDENTIAL TREATMENT REQUESTED
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(b) Limitations. Notwithstanding the foregoing, ChannelPoint shall not
indemnify Zurich or any Affiliate for any claims to the extent based on: (i) any
Zurich, Affiliate or third party intellectual property or software incorporated
in or combined with the Commerce Exchange Platform where, in the absence of such
incorporated item, the Commerce Exchange Platform would not have been
infringing; (ii) software that has been altered or modified by or on behalf of
Zurich or any Affiliate or any third party without the permission of
ChannelPoint where, in the absence of such alteration or modification, the
Commerce Exchange Platform would not be infringing; (iii) any use of an outmoded
or superseded version of the Commerce Exchange Platform for which ChannelPoint
has made available an updated, revised or repaired version which is not
infringing, provided that Zurich had reasonable opportunity to install or
otherwise implement such updated, revised or repaired version; or (iv) software
that has become infringing as a result of any detailed functionality or
system-level architecture direction given by Zurich, any Affiliate or any of
their representatives.
(c) Infringing Products. Upon notice of any indemnifiable claim of
infringement under this Section 11.2 or upon reasonable belief of the likelihood
of such a claim, ChannelPoint shall have the right, at its option: (i) to obtain
the rights to continued use of the Commerce Exchange Platform; (ii) substitute
other suitable, functionally-equivalent, non-infringing software; (iii) replace
or modify any infringing part of the Commerce Exchange Platform or its design so
that it is no longer infringing; or, in the event that ChannelPoint, using
commercially reasonable efforts, is unable to cure the infringement under either
(i), (ii) or (iii), then: (iv) refund to Zurich the Commerce Exchange Platform
Fees already paid by Zurich, depreciated on a five-year straight-line basis.
THIS SECTION STATES CHANNELPOINT'S SOLE LIABILITY AND ZURICH'S SOLE REMEDY FOR
INFRINGEMENT CLAIMS RELATING TO THE COMMERCE EXCHANGE PLATFORM.
12. LIMITATIONS OF LIABILITY
NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO
THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL
EITHER PARTY'S LIABILITY TO THE OTHER UNDER ANY PORTION OF THE AGREEMENT EXCEED
THE LESSER OF (A) PAYMENTS RECEIVED BY CHANNELPOINT FROM OR ON BEHALF OF ZURICH
FOR THE SERVICES OR (B) [...***...]; PROVIDED THAT SUCH LIMITS SET FORTH IN
SECTIONS (A) AND (B) OF THIS ARTICLE 12 SHALL NOT APPLY TO: [...***...]; (d)
PERSONAL OR BODILY INJURY OR DEATH ARISING OUT OF FAULT OR NEGLIGENCE OF EITHER
PARTY; (e) AMOUNTS PAYABLE AS A RESULT OF INFRINGEMENT CLAIMS UNDER SECTION
11.2(c); OR (f) AMOUNTS DUE AND OWING UNDER THIS AGREEMENT. THE EXISTENCE OF ONE
OR MORE CLAIMS WILL NOT ENLARGE
* CONFIDENTIAL TREATMENT REQUESTED
22.
23
THIS LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS ARTICLE IS AN ESSENTIAL
ELEMENT OF THE AGREEMENT AND THAT, IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS
AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
13. TERM AND TERMINATION
13.1 TERM. This Agreement is effective as of the Effective Date and shall
continue in effect until terminated as provided in Section 13.2 below.
13.2 TERMINATION.
(a) Material Breach. If either party materially breaches its obligation
under this Agreement and fails to cure or take reasonable steps to undertake to
cure within thirty (30) days after written notice is provided by the
non-breaching party specifying the breach in reasonable detail and demanding its
cure (the "CURE PERIOD"), the non-breaching party may commence an action to
rescind this Agreement. Zurich shall be responsible for any breach of the terms
of this Agreement by its Affiliates; provided, however, that a breach of any
separate agreement between ChannelPoint and a Business Unit or an Affiliate,
including any Service Supplement, that does not violate any of the terms of this
Agreement shall not constitute a breach of this Agreement.
(b) Ordinary Termination. Upon expiration of the first [...***...]
since the Effective Date Zurich shall have the right to terminate this Agreement
at any time by giving ChannelPoint [...***...] prior written notice (the "NOTICE
PERIOD").
13.3 EFFECTS OF TERMINATION.
(a) Zurich's Material Breach. In the event ChannelPoint elects to
terminate this Agreement for any uncured material breach of the Agreement by
Zurich, all licenses granted to Zurich under this Agreement shall continue for a
transition period of up to [...***...], subject to all restrictions, rights and
obligations of both parties including the payment of all sums due to
ChannelPoint under this Agreement. Thereafter, this Agreement and all licenses
granted hereunder shall terminate and Zurich and all Affiliates shall promptly
cease all use of the Commerce Exchange Platform and APIs [...***...] and Zurich
shall not be entitled to any refund of payments made by Zurich unless otherwise
explicitly provided herein.
(b) ChannelPoint's Material Breach. As a result of any uncured material
breach of the Agreement by ChannelPoint, Zurich may (i) withhold any outstanding
payments owed to ChannelPoint that are subject to any good faith dispute by
Zurich; and (ii) elect to terminate this Agreement, provided that, in this
event, all licenses granted to Zurich under this Agreement shall continue for an
unlimited period of time until Zurich notifies ChannelPoint that it and its
Affiliates have ceased all use of the Commerce Exchange Platform and the APIs
(the "TRANSITION PERIOD"), subject to all restrictions, rights and obligations
of both parties including the payment of all sums that are not subject to a good
faith dispute due under this Agreement
* CONFIDENTIAL TREATMENT REQUESTED
23.
24
provided, however, that no [...***...] shall be made as set forth in Section
[...***...] of this Agreement for [...***...] after expiration of the Cure
Period [...***...] (the "GRACE PERIOD"). If any products [...***...] are
included [...***...] at any time after the expiration of the Grace Period
[...***...], Zurich shall pay ChannelPoint [...***...] Fee calculated as set
forth in Section [...***...] above, except that [...***...] shall be determined
as if [...***...] occurred upon the expiration of the Grace Period. ChannelPoint
shall provide reasonable levels of transition support to Zurich for which Zurich
shall compensate ChannelPoint on a time and materials basis, provided, however
that such transition support shall be provided without charge to Zurich up to a
maximum value equal to the value of the then-current [...***...] Fee owed by
Zurich [...***...] for the Commerce Exchange Platform. In the event that a court
of competent jurisdiction determines that ChannelPoint has not materially
breached the Agreement or has cured any material within the time period
specified above, Zurich shall compensate ChannelPoint for the value of any
transition support provided to Zurich at no charge. After the expiration of the
Transition Period, this Agreement and all licenses granted hereunder shall
terminate and Zurich and all Affiliates shall promptly cease all use of the
Commerce Exchange Platform and APIs and [...***...], and Zurich shall not be
entitled to any refund of payments made by Zurich unless otherwise explicitly
provided herein or awarded by a court of competent jurisdiction. In the
alternative, while pursuing any remedies for breach of contract, Zurich may
elect to continue this Agreement, subject to all terms and conditions hereof,
except that in the event that any material breach of this Agreement by
ChannelPoint results in the release of the Source Code deposit, Zurich may
terminate any obligation to procure Maintenance Services from ChannelPoint.
(c) Ordinary Termination. After expiration of the Notice Period, this
Agreement and all licenses granted hereunder shall terminate and Zurich and all
Affiliates shall promptly cease all use of the Commerce Exchange Platform and
APIs [...***...]. Any fees for Maintenance Services performed until the
expiration of the Notice Period shall be calculated on a prorated basis until
expiration of such Notice Period and be paid prior to such expiration.
(d) Mutual Provisions. Termination is not an exclusive remedy and all
other remedies will be available whether or not the License is terminated.
Sections 2.4, 6.4, 6.5, 7.9 (with respect to fees due and owing prior to
termination), 9, 11, 12, 14.1 and 14.11 shall survive any termination of this
Agreement.
14. GENERAL PROVISIONS
14.1 GOVERNING LAW. This Agreement will be governed and construed in
accordance with the laws of the United States of America and the State of New
York without giving effect to principles of conflict of laws.
* CONFIDENTIAL TREATMENT REQUESTED
24.
25
14.2 NO EXPORT. Zurich acknowledges that the laws and regulations of the
United States restrict the export and re-export of commodities and technical
data of United States origin, including the Commerce Exchange Platform and APIs.
Zurich agrees that it will not export or re-export the Commerce Exchange
Platform or APIs from the United States or the country originally shipped to by
ChannelPoint in any form, without the appropriate United States and foreign
governmental licenses.
14.3 SEVERABILITY; WAIVER. If any provision of this Agreement is held to be
invalid or unenforceable for any reason, the remaining provisions will continue
in full force without being impaired or invalidated in any way. The parties
agree to replace any invalid provision with a valid provision that most closely
approximates the intent and economic effect of the invalid provision. The waiver
by either party of a breach of any provision of this Agreement will not operate
or be interpreted as a waiver of any other or subsequent breach.
14.4 HEADINGS. Headings used in this Agreement are for reference purposes
only and in no way define, limit, construe or describe the scope or extent of
any section, or in any way affect this Agreement.
14.5 ASSIGNMENT. Neither party may assign this Agreement in whole or in
part without the express written consent of the other party, such consent not to
be unreasonably withheld or delayed. Notwithstanding the foregoing, either party
may assign this Agreement to a successor of its entire business whether by sale
of all or substantially all of the assets or outstanding capital stock of such
party or by merger, consolidation or the like, provided that the successor
agrees in writing to be bound by all terms and conditions of this Agreement.
This Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns.
14.6 FORCE MAJEURE. Neither party will be liable for any failure to fulfill
its obligations hereunder due to causes beyond its reasonable control, including
acts or omissions of government or military authority, acts of God, shortages of
materials, telecommunications failures (including any systemic Internet failures
and any interruptions in services of Internet service providers), transportation
delays, earthquakes, fires, floods, labor disturbances, riots or wars (a "FORCE
MAJEURE EVENT"). If a Force Majeure Event continues for sixty (60) days or more,
the party awaiting performance from the party suffering the Force Majeure Event
may terminate this Agreement immediately upon written notice to such party.
14.7 NONSOLICITATION OF PERSONNEL. During the term of this Agreement and
for a period of (1) year thereafter, neither party shall directly or indirectly
solicit, employ or otherwise contract for the services of any employees of the
other party; provided that the foregoing shall not prohibit either party from
issuing advertisements of a general nature not specifically directed at any such
employee.
14.8 INDEPENDENT CONTRACTORS. The parties to this Agreement are independent
contractors, and no agency, partnership, joint venture or employee-employer
relationship is intended or created by this Agreement.
14.9 NOTICE. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered by hand or mailed by
registered or certified mail, return
25.
26
receipt requested, first-class postage prepaid, addressed as set forth below. If
delivered personally, the date on which a notice, request, instruction or
document is delivered shall be the date on which such delivery is made and, if
delivered by mail, the date on which such notice, request, instrument or
document is received shall be the date of delivery. Any party hereto may change
its address specified for notices herein by designating a new address by notice
in accordance with this Section.
(A) IF TO ZURICH:
Zurich Financial Services Zurich Insurance Company
Xxxxxxxxxx 0 Xxxxxxxxxx 0
X.X. Xxx X.X. Xxx
0000 Xxxxxx, Xxxxxxxxxxx 0000 Xxxxxx, Xxxxxxxxxxx
Attn: [...***...] Attn: [...***...]
Fax: [...***...] Fax: [...***...]
E-mail: [...***...] E-mail: [...***...]
cc: [...***...] cc: [...***...]
Fax: [...***...] Fax: [...***...]
(B) IF TO CHANNELPOINT:
ChannelPoint, Inc.
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: General Counsel
14.10 ENTIRE AGREEMENT. This Agreement, including the items attached
hereto, sets forth the entire understanding and agreement of the parties on this
matter and supersedes any and all oral or written agreements or understandings
between the parties as to the subject matter of this Agreement. This Agreement
may be modified only by a writing signed by both parties.
14.11 JURISDICTION. Any legal action or other proceeding for any purpose
with respect to this Agreement shall be instituted in a federal or state court
of competent jurisdiction in the State and County of New York. Zurich and
ChannelPoint hereby submit to the exclusive jurisdiction of such courts and
waive any objection to the proprietary or convenience of venue therein.
Notwithstanding the foregoing, nothing herein shall be taken to limit the right
of Zurich or ChannelPoint to seek injunctive or other equitable relief and/or to
enforce any judgment in any other court of competent jurisdiction, whether
concurrent or not.
* CONFIDENTIAL TREATMENT REQUESTED
26.
27
IN WITNESS WHEREOF, each party has executed this Agreement on its behalf,
all on the day and year first above written.
ZURICH FINANCIAL SERVICES CHANNELPOINT, INC.
By: [...***...] By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------- ---------------------------------
Printed Name: [...***...] Printed Name: Xxxxxxx Xxxxxx
---------------------- -----------------------
Title: [...***...] Title: Chief Executive Officer
----------------------------- ------------------------------
Date: January 5, 2000 Date: January 7, 2000
------------------------------ -------------------------------
By: /s/ [...***...] ZURICH INSURANCE COMPANY
--------------------------------
Printed Name: [...***...]
----------------------
Title: [...***...] By: /s/ [...***...]
----------------------------- ---------------------------------
Date: January 5, 2000 Printed Name: [...***...]
------------------------------ -----------------------
Title: [...***...]
------------------------------
Date: January 5, 2000
-------------------------------
By: [...***...]
---------------------------------
Printed Name: [...***...]
-----------------------
Title: [...***...]
------------------------------
Date: January 5, 2000
-------------------------------
* CONFIDENTIAL TREATMENT REQUESTED
28
EXHIBIT A
COMMERCE EXCHANGE PLATFORM DESCRIPTIONS
1. Exchange Platform Definitions
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
[...***...]
* CONFIDENTIAL TREATMENT REQUESTED
Exhibit A-1
29
[...***...]
-------------------------------------------------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED
Exhibit A-2
30
EXHIBIT B
THIRD-PARTY SOFTWARE
-------------------------------------------------------------------------------------------------------------------------
Product Vendor License Approx. Use
Parameters Cost (000)
-------------------------------------------------------------------------------------------------------------------------
[...***...]
* CONFIDENTIAL TREATMENT REQUESTED
Exhibit X-0
00
XXXXXXX X
XXXXXX DATA CENTERS
TO BE DETERMINED BY ZURICH AND PROVIDED AFTER THE EFFECTIVE DATE, SUBJECT TO
MODIFICATION UNDER THE TERMS OF THE AGREEMENT.
Exhibit C-1
32
EXHIBIT D
CHANNELPOINT MAINTENANCE ADDENDUM
MAINTENANCE ADDENDUM #
---------
Zurich desires to participate in ChannelPoint's program ("Maintenance Program")
as set forth herein to provide support for the Commerce Exchange Platform and
certain Applications (the "Products") specified in the Commerce Exchange
Platform Agreement between Zurich and ChannelPoint (the "Agreement"). This
Maintenance Addendum is an attachment to and a part of the Agreement and is
incorporated therein by reference. This Addendum sets forth terms additional to,
and not in lieu of, the Agreement. Capitalized terms used but not defined herein
shall have the same meanings as in the Agreement.
1. MAINTENANCE. ChannelPoint shall provide Maintenance Services to Zurich for
the Products for which Maintenance Services have been obtained by Zurich
pursuant to the Agreement. The Maintenance Services currently consist of: (a)
ChannelPoint delivering to Zurich (in electronic format, if requested by Zurich)
all updates, modifications, and new versions or Product releases which are
generally made available to other Maintenance Program participants at no extra
charge; (b) telephone support during normal Maintenance Program hours (currently
weekdays from [...***...]; (c) unlimited access to Web-based self-help materials
and the ability to create, submit and review status of support assistance
requests (access is 24x7 outside normal periods); and (d) error corrections
which are generally made available to other Maintenance Program participants at
no charge. ChannelPoint may from time to time revise its Maintenance Program
offerings at its sole discretion upon thirty (30) days written notice to Zurich.
Maintenance Program changes cannot provide a lesser level of service than
currently provided. Maintenance Services shall be provided solely to the
Technical Contacts specified by Zurich in writing to ChannelPoint to the
attention of Director ChannelPoint Support Center. Any change to this list must
be submitted in writing at least 5 business days prior to the effective date of
the change. ChannelPoint will support only the two (2) most recent version
releases of the Product. Maintenance Services shall not include any new products
provided by ChannelPoint at a separate fee whether or not such new products are
based upon or include the features of any supported Product.
2. TERM AND TERMINATION. The Maintenance Services shall be provided for the
minimum period specified in the Agreement (the "Minimum Maintenance Period"),
unless this Addendum is terminated as provided herein or unless the Agreement
terminates, in which case Maintenance Services will terminate. ChannelPoint
shall provide Zurich with notice of the expiration of a maintenance period at
least sixty (60) days prior to the end of the term and Zurich may renew the
Maintenance Services on [...***...] basis by providing written notice to
ChannelPoint within thirty (30) days of such notice. ChannelPoint may suspend or
cancel Maintenance Service upon non-payment if such non-payment is not remedied
within thirty (30) days after Zurich receives written notice of the breach.
3. FEES AND PAYMENT. Zurich shall pay ChannelPoint the applicable Maintenance
Service Fees set forth in the Agreement for each Product for which Maintenance
Services are provided, payable in accordance with the schedule specified in the
Agreement. Zurich shall be responsible for all taxes associated with Maintenance
Services except employment taxes or taxes based on ChannelPoint's net income. In
the event Zurich fails to pay ChannelPoint on the due date or Maintenance
Services are otherwise discontinued or suspended, then to reinstate or renew
Maintenance Services (a) ChannelPoint shall have discretion to accept or reject
such renewal or reinstatement, and (b) Zurich must first pay ChannelPoint the
Maintenance Services Fees for an interim period during which Maintenance
Services were discontinued or suspended, and any applicable reinstatement
charges listed in ChannelPoint's then-current price list. In the event Zurich
upgrades (requests a higher level of Maintenance Services), downgrades (requests
a lower level of Maintenance Services), or discontinues a Product from
Maintenance Services, the Maintenance Service Fees shall be adjusted in
accordance with ChannelPoint's then current policies. [...***...] Zurich shall
reimburse ChannelPoint for reasonable travel, lodging and meal expenses
* CONFIDENTIAL TREATMENT REQUESTED
Exhibit D-1
33
incurred for travel outside of ChannelPoint's site and which ChannelPoint is
required to incur in performing any on-site maintenance services as requested by
Zurich. Any ChannelPoint support personnel shall comply with the standard
expense reimbursement policies of Zurich or the applicable Affiliate that are
provided to ChannelPoint.
4. TELEPHONE SUPPORT AND ERROR CORRECTION. ChannelPoint shall exercise
commercially reasonable efforts to correct any error in the current unmodified
release of Product which is reported by Zurich such that the Product shall
perform in accordance with the applicable Documentation. If the error was solely
within the Product, ChannelPoint shall deliver the correction or workaround to
Zurich promptly after creating such, in accordance with the service level
criteria specified in Attachment 1. All other corrections may be delivered under
the next scheduled error-correction release under the Maintenance Program. If
Zurich reports a problem that is scheduled by ChannelPoint to be solved in a
later incremental release, ChannelPoint may address such correction in such
release.
If ChannelPoint believes that a problem reported by Zurich may not be due to an
error in the Product, ChannelPoint will so notify Zurich and may at
ChannelPoint's discretion provide Zurich an opportunity to have ChannelPoint
address the error at Zurich's expense under ChannelPoint's then-current
Professional Services rates on an as-available basis for ChannelPoint's
resources. If Zurich instructs ChannelPoint that it does not wish the problem
pursued, or if such determination requires effort in excess of Zurich's
instructions, ChannelPoint may, at its sole discretion, elect not to investigate
the error. Zurich agrees to pay ChannelPoint at ChannelPoint's standard
Professional Services rates for all effort expended towards resolution of a
problem which is later determined to result from any cause other than an error
in the Product. ChannelPoint shall refund to Zurich all amounts paid to
ChannelPoint under this Section 4 in connection with a problem that turns out to
be caused by an error in the Product and/or acts or failure to act by
ChannelPoint.
5. EXCLUSIONS. ChannelPoint shall have no obligation to offer Maintenance
Services for: (a) Products altered, damaged or modified by other than
ChannelPoint or all or any portion of a Product incorporated into other software
by other than ChannelPoint or its subcontractors; (b) Products that are not one
of the releases currently supported under the Maintenance Program; (c) Product
problems caused by Zurich's gross negligence, abuse or misapplication, Product
use other than as specified in the ChannelPoint-published documentation, or; (d)
Products installed on any computer hardware that is not supported by
ChannelPoint. ChannelPoint shall have no liability for any changes required by
Zurich's hardware or software configuration which may be necessary to use
Products due to a workaround, error correction, or maintenance release.
6. APPLICABLE PROVISIONS. Unless expressly provided to the contrary elsewhere in
the Agreement, all provisions of the Agreement, including the Limitation of
Liability provisions specified in Section 12 thereof, shall apply to all rights
and obligations of the parties under this Addendum.
Exhibit X-0
00
XXXXXXXXXX 1 TO EXHIBIT D
SERVICE LEVELS
o GENERAL PRINCIPLES: :
o CALLBACK RESPONSE IS DETERMINED BY FAILURE LEVEL.
o FAILURE IS SPECIFIED BY ZURICH BASED UPON DESCRIPTIONS CONTAINED IN THIS
ATTACHMENT.
o THE FOLLOWING RESPONSE TIMES AND CRITERIA APPLY ONLY TO PRODUCTION SYSTEMS,
NOT DEVELOPMENT, TEST OR OTHER NON-PRODUCTION SYSTEMS.
I. FAILURE LEVELS AND MAXIMUM RESPONSE TIMES:
1. FAILURE LEVEL 1: Production system completely inoperative. No work can be
performed on the system.
o Initial response time: one (1) hour.
o ChannelPoint will use best efforts to respond immediately and to provide a
resolution within 24 hours. If a resolution cannot be achieved within 48
hours, and upon request by Zurich, ChannelPoint will provide on-site
personnel, subject to travel constraints, to diagnose and debug such error.
o Zurich will provide reasonable access to its systems and assigned technical
staff for problem analysis, assessment, and deliver of patches and error
corrections.
2. FAILURE LEVEL 2: Production system with some components inoperative and no
reasonable workaround solution exists.
o Initial response time: one (1) hour.
o ChannelPoint will use best efforts to respond immediately and to provide a
resolution within 48 hours. If a resolution cannot be achieved within 72
hours, ChannelPoint and, upon request by Zurich, will provide on-site
personnel, subject to travel constraints, to diagnose and debug such error.
o Zurich will provide reasonable access to its systems and assigned technical
staff for problem analysis, assessment, and delivery of patches and error
corrections.
3. FAILURE LEVEL 3: Production system with some components inoperative where a
reasonable workaround solution exists. Most work can be performed on the
system
o Initial response time: four (4) hours.
o ChannelPoint shall deliver the correction or workaround to Zurich promptly
after creation.
o Corrections may be scheduled to be solved in a later incremental release.
4. FAILURE LEVEL 4: Other questions, issues and problems that do not materially
impact productive work.
o Initial response time: 24 hours.
Exhibit D Attachment 1-1
35
o Requests will be addressed in priority order with best efforts to answer
the question or resolve the issue in a timely manner.
o Requests For Enhancement may be submitted for consideration in a future
release.
II. ESCALATION PROCEDURE:
All Failure Level 1 and 2 error reports will be reviewed each day to determine
if any open deficiencies need to be escalated. If a resolution plan does not
exist for an escalated deficiency, one will be developed immediately upon
escalation. Zurich may request a deficiency escalation if the deficiency is not
corrected within the specified time period or if Zurich disagrees with the
assigned deficiency classification. An escalation will not change the
deficiency's severity; rather, it will highlight a deficiency so it receives
management focus.
The escalation path for deficiencies is as follows:
----------------------------------------------------------------------------------------------------------------------
Director, Client Services-Special attention. Daily updates until deficiency resolved.
Response or resolution time objectives
exceeded. One day past resolution.
Xxxxx Xxxxx
Office: (000) 000-0000
Mobile: (000) 000-0000
Pager: (000) 000-0000
------------------------------------------------------------ ---------------------------------------------------------
Vice President - WorldWide Services- Daily updates until deficiency resolved.
Unsatisfactory response to critical deficiency,
multiple deficiencies impacting business.
Dissatisfaction with Manager escalation. Two
days past resolution.
Xxxxxxxxx Xxxxxx
Office: (000) 000-0000
Mobile: (000) 000-0000
------------------------------------------------------------ ---------------------------------------------------------
President - Critical. Business relationship Daily updates until deficiency resolved.
deteriorating due to persistent problems and Review of deficiency resolution process
previous levels of escalation have failed.
Three days past resolution.
Xxxxxxx Xxxxxx
Office: (000) 000-0000
Mobile: (000) 000-0000
----------------------------------------------------------------------------------------------------------------------
Exhibit D Attachment 1-2
36
EXHIBIT E
SOFTWARE ESCROW ADDENDUM
--------------------------------------------------------------------------------
This Software Escrow Addendum is an attachment to and a part of the Commerce
Exchange Platform Agreement between ChannelPoint and Zurich, dated as of this
same date (the "AGREEMENT"), and is incorporated therein by reference. This
Addendum sets forth terms additional to, and not in lieu of, the Agreement.
Capitalized terms used but not defined herein shall have the same meanings as in
the Agreement.
SOFTWARE ESCROW TERMS AND CONDITIONS
1. DEPOSIT. At Zurich's expense, ChannelPoint shall, within ninety (90) days of
the Effective Date of this Agreement and during the term of this Agreement,
cause complete copies of Source Code of the Commerce Exchange Platform that has
been licensed to Zurich pursuant to this Agreement to be on deposit with Data
Securities International ("ESCROW AGENT"). The terms of the escrow arrangement
shall be substantially as set forth in the attached form (the "ESCROW
AGREEMENT"). The parties shall cooperate in good faith to develop a complete and
reasonable verification procedure to verify that the most recent major release
of Source Code is included in the materials provided to the Escrow Agent, such
procedures should include (a) a list of the files that are included in the
escrow materials and, for each file, the file size, file name and the date such
files were modified; (b) documentation that describes the software functions
that have been modified in any such major release; (c) a method to confirm that
the executable generated from the Source Code and interfaces to other systems,
if applicable, operate on any supported system configurations in substantially
the same manner as the most recent major release of the Commerce Exchange
Platform including APIs; and (d) a declaration by one of ChannelPoint's officers
whereby upon each deposit of materials with the Escrow Agent such officer
declares and confirms to the Escrow Agent and to Zurich that the most recent
major release of Source Code is included in the materials provided to the Escrow
Agent and that the executable generated from such Source Code operates on any
supported system configurations in substantially the same manner as the most
recent major release of the Commerce Exchange Platform including APIs.
2. LIMITED LICENSE TO SOURCE CODE. Provided that Zurich has paid to ChannelPoint
all fees owed by Zurich, except for any disputed amounts as provided in Section
13.3(b), Zurich shall be entitled to receive the Source Code, strictly in
accordance with the procedures described in the Escrow Agreement, in the event
that (a) all or a substantial portion of the assets of ChannelPoint are
transferred to an assignee for the benefit of creditors, to a receiver or to a
trustee in bankruptcy, (b) a proceeding is commenced by or against ChannelPoint
for relief under bankruptcy or similar laws and such proceeding is not dismissed
or vacated within sixty (60) days, (c) ChannelPoint is adjudged bankrupt, (d)
ChannelPoint has materially failed to provide Maintenance Services for the
Commerce Exchange Platform in accordance with the Agreement for a period of two
(2) months and has not corrected such failure within thirty (30) days of
Zurich's written notice to ChannelPoint specifying, in reasonable detail, the
manner in which ChannelPoint has failed to support the Commerce Exchange
Platform and demanding its cure, or (e) a Competitor (as defined in paragraph 4
below) or third party on behalf of such Competitor acquires all of
ChannelPoint's business or that part of its business through which the
obligations under the Agreement are performed, or (f) as a result of any
transaction or series of transactions a Competitor or third party on behalf of
such Competitor acquires Control (as defined in paragraph 4 below) of
ChannelPoint. In the event that Zurich receives the Source Code, Zurich shall
have the nonexclusive, nontransferable right to use the Source Code solely for
purposes of its internal maintenance and support of the Commerce Exchange
Platform for Zurich's use only as permitted in this
Exhibit E-1
37
Agreement during the term of this Agreement and for any transition period set
forth in Section 13.3 of the Agreement, provided that Zurich is in full
compliance with the other terms and conditions of this Agreement.
3. NONDISCLOSURE. All Source Code, as delivered or modified, shall constitute
Confidential Information of ChannelPoint for purposes of this Agreement, and
Zurich shall not disclose to any third party, or allow any third party to
access, the Source Code or any modifications thereto without ChannelPoint's
express written consent. Furthermore, Zurich shall permit access to the Source
Code only to those of its employees or outside contractors who (a) have a need
to access the Source Code for purposes authorized under this Section and (b)
have executed written agreements which obligate such employee(s) or contractors
to maintain such materials in strict confidence.
4. CERTAIN DEFINITIONS. For the purposes of this Addendum:
a "COMPETITOR" means a person or group of related persons, including any of
its or their subsidiaries or affiliates, which in the last fiscal year before
such event as set forth in 2(e) or 2(f) hereof derived revenues (such as
premiums, fees etc.) on a consolidated basis from insurance or reinsurance
products or services in the amount of not less than US$15 billion; provided,
however, that on or before 2 years from the Effective Date of this Agreement,
the parties agree to negotiate a revised threshold figure which would constitute
a "Competitor" for purposes of this Addendum taking into account any relevant
changes to Zurich's business or changes in market conditions.
"CONTROL" means (a) the beneficial ownership of more than 50% of the voting
power of ChannelPoint; (b) the power to elect a majority of ChannelPoint's Board
of Directors; or (c) the power to direct or manage the business and affairs of
ChannelPoint through agreements between a Competitor and individual members of
ChannelPoint's Board of Directors or ChannelPoint's stockholders.
Exhibit X-0
00
XXXXXXX X
SERVICES ADDENDUM
Zurich desires to retain ChannelPoint to provide certain services under the
terms hereof. This Services Addendum is an attachment and a part of the Commerce
Exchange Platform Agreement between Zurich and ChannelPoint, dated as of this
same date (the "AGREEMENT") and is incorporated therein by reference. This
Addendum sets forth terms additional to, and not in lieu of, the Agreement.
Capitalized terms used but not defined herein shall have the same meanings as in
the Agreement.
1. STATEMENT OF WORK. ChannelPoint agrees to render consulting services to
Zurich as set forth in a Statement of Work attached to this Agreement
("SERVICES") and to deliver the deliverables identified in the Statement of Work
(the "DELIVERABLES"). If the Services are to be provided on Zurich's premises
(a) Zurich shall provide safe and adequate space, power, network connections and
other resources as reasonably requested by ChannelPoint, and (b) ChannelPoint
shall adhere to Zurich's established written guidelines provided to ChannelPoint
concerning on-site visits by contractors and the use of Zurich's computer
equipment. ChannelPoint shall use reasonable efforts to perform the Services in
accordance with time estimates and schedules established in the Statement of
Work, provided that Zurich acknowledges that circumstances beyond ChannelPoint's
control may cause delays in implementing the Services or any Service milestones.
Such circumstances may include changes to Zurich's, or an applicable
Affiliate's, business plans or practices or Zurich's modification of project
plans, resource commitments or specifications.
2. PROJECT ADMINISTRATION. The Contact for Zurich shall provide ChannelPoint all
assistance and guidance reasonably requested by ChannelPoint and necessary for
the performance of the Services. In providing the Services, ChannelPoint will
work with and under the direction of a project team designated by Zurich.
Zurich's project team and ChannelPoint's service providers shall be jointly
responsible for creating a detailed project plan and for scheduling any Zurich
resources required by ChannelPoint to perform the Services.
3. COMPENSATION. ChannelPoint shall be paid the fees at the time and materials
rates negotiated by the Affiliate requesting the work, using the rates set forth
in Schedule 1 as the basis attached hereto for time spent performing the
Services. ChannelPoint may adjust the base rates, as required to reflect local
business conditions. Upon each anniversary date of the Effective Date of the
Agreement, ChannelPoint may, upon thirty (30) days prior written notice, revise
the time and materials rates applicable to the Services performed during the
following year. Zurich shall also reimburse ChannelPoint for reasonable travel,
lodging and meal expenses for Services performed outside of ChannelPoint's site
which ChannelPoint is required to incur in providing the Services, pursuant to
Zurich's standard expense reimbursement policy that has been provided to
ChannelPoint. ChannelPoint shall provide Zurich with invoices detailing the
consulting hours, fees and expense reimbursements due ChannelPoint, and shall
itemize and provide receipts for expenses over two hundred dollars upon request.
Zurich shall be responsible for all taxes associated with the Services and the
payment of fees for the Services except taxes based on ChannelPoint's net
income. Zurich's payment is due within thirty (30) days of receipt of the
ChannelPoint invoice. All prices are in U.S. dollars except as expressly stated
otherwise.
4. LICENSE. Zurich acknowledges that in order to perform the Services,
ChannelPoint may be required to have access to certain Zurich software or other
material of Zurich or Zurich's suppliers ("ZURICH MATERIAL"). Zurich grants to
ChannelPoint a non-exclusive, non-transferable license to use Zurich's software
and other materials as required for ChannelPoint's performance of the Services
Exhibit F-1
39
hereunder and only for such purpose. ChannelPoint shall have the right to
sublicense such grant solely to the extent that ChannelPoint requires assistance
for the performance of the Services for Zurich, with Zurich's prior, written
approval, which shall not be unreasonably withheld.
5. OWNERSHIP. Ownership of ChannelPoint Property and Zurich Property shall be
governed by the terms and conditions stipulated hereinafter, those set forth in
Section 6.4 of the Agreement as well as, where applicable, [...***...]. Except
for the terms and conditions set forth in Section 5(c) hereinafter, the terms
and conditions agreed in [...***...] shall prevail in case of any contradiction
with those set forth hereinafter in subsection (a) and (b) or in Section 6.4 of
the Agreement, with respect to any activities or intellectual property described
in such provisions [...***...].
(a) Ownership of Zurich Property. Zurich shall be the sole owner of all
intellectual property rights in and to all Zurich Property, as defined in
Section 6.4 of the Agreement, embodied in all Deliverables, including any
Applications developed as part of the Services, [...***...].
(b) Ownership of ChannelPoint Property. ChannelPoint shall be the sole owner
of all intellectual property rights in all ChannelPoint Property embodied in all
Deliverables, as defined in Section 6.4 of the Agreement, [...***...].
(c) [...***...].
6. CHANGES TO STATEMENT OF WORK. If Zurich desires to change any item on the
Statement of Work (including without limitation Deliverables and schedules),
Zurich shall submit a written proposal to
* CONFIDENTIAL TREATMENT REQUESTED
Exhibit F-2
40
ChannelPoint detailing the changes. ChannelPoint shall have fifteen business
days to notify Zurich of the resulting cost and schedule changes and whether
ChannelPoint has the resources available to make such changes to the Statement
of Work. If ChannelPoint has adequate resources to make the change, Zurich may
accept the revisions and the Statement of Work shall be amended accordingly. If
Zurich and ChannelPoint are not able to agree to the adjustment in the cost or
schedule or other changes in the Statement of Work, then the Statement of Work
will remain unchanged.
7. CONFIDENTIALITY. Each party shall comply with all confidentiality
restrictions set forth in the Agreement with respect to any Confidential
Information exchanged by the parties while ChannelPoint is performing Services
under this Addendum, and for such time period specified in the Agreement.
8. LIMITED WARRANTY. ChannelPoint warrants the Deliverables to the extent
provided in Section 10.2(b)(i) of the Agreement. ChannelPoint shall perform the
services in a good and workmanlike manner consistent with any applicable
industry standards. Zurich's sole remedy and ChannelPoint's sole liability for a
breach of the foregoing shall be for ChannelPoint to, at its option, either
re-perform the Services or, if ChannelPoint cannot remedy any defects within a
commercially reasonable time, refund sums paid for such non-conforming Services.
CHANNELPOINT HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND
OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SERVICES
PROVIDED HEREUNDER AND DELIVERABLES, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. EXCEPT FOR THE WARRANTIES PROVIDED IN THIS SECTION 8 WITH
RESPECT TO THE DELIVERABLES, CHANNELPOINT DOES NOT WARRANT OR REPRESENT THAT THE
DELIVERABLES WILL BE FREE FROM BUGS OR THAT THE USE OF SUCH WILL BE
UNINTERRUPTED OR ERROR-FREE OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE,
OR THE RESULTS OF THE USE, OF THE DELIVERABLES IN TERMS OF CORRECTNESS,
ACCURACY, RELIABILITY, OR OTHERWISE. Zurich understands that ChannelPoint is not
responsible for and will have no liability for hardware, software, or other
items or any services provided by any persons other than ChannelPoint, including
without limitation items supplied by Zurich, except for the Third-Party Software
provided by ChannelPoint as part of the Commerce Exchange Platform.
9. CHANNELPOINT INDEMNITY. ChannelPoint agrees to indemnify and defend Zurich
for the Deliverables to the extent ChannelPoint indemnifies Zurich under Section
11.2 of the Agreement. The foregoing sets forth ChannelPoint's sole and
exclusive obligation and Zurich's sole and exclusive remedy for any claim of
intellectual property infringement or misappropriation.
10. ZURICH INDEMNITY. Zurich shall indemnify and defend ChannelPoint to the
extent Zurich indemnifies ChannelPoint under Section 11.1 of the Agreement. The
foregoing sets forth Zurich's sole and exclusive obligation and ChannelPoint's'
sole and exclusive remedy for any claim of intellectual property infringement or
misappropriation.
Exhibit F-3
41
SCHEDULE 1 TO EXHIBIT F
CHANNELPOINT'S TIME AND MATERIALS RATES
CHANNELPOINT PROFESSIONAL SERVICES RATE SCHEDULE - 1999
Following is the table of base hourly rates for professional services
provided by ChannelPoint:
--------------------------------------------------------------
TITLE U.S. DOLLAR RANGE
-------------------------------- -----------------------------
Executive [...***...]
-------------------------------- -----------------------------
Project Manager [...***...]
-------------------------------- -----------------------------
Consultant [...***...]
-------------------------------- -----------------------------
IT Developer [...***...]
--------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED
Exhibit F Schedule 1-4
42
EXHIBIT G
NEW LINE OF BUSINESS EVALUATION PROCEDURES
[...***...]
* CONFIDENTIAL TREATMENT REQUESTED
Exhibit G-1
43
[...***...]
* CONFIDENTIAL TREATMENT REQUESTED
Exhibit G-2
44
EXHIBIT H
FORM OF WORK FOR HIRE AGREEMENT
Form of Agreement - [...***...] - will be attached hereto after the Effective
Date
* CONFIDENTIAL TREATMENT REQUESTED
Exhibit H-1
45
EXHIBIT I
MAINTENANCE SERVICE FEE PAYMENT SCHEDULE
Maintenance Service Fees are based on a calendar year, payable in calendar
quarterly installments due fifteen (15) days after the end of each calendar
quarter. Maintenance Service Fees shall be calculated as follows:
1. COMMERCE EXCHANGE PLATFORM MAINTENANCE. The baseline annual Maintenance
Service Fee for Maintenance Services provided by ChannelPoint on the Commerce
Exchange Platform is [...***...] of the then-current aggregate Commerce Exchange
Platform Fee (the "BASELINE MAINTENANCE FEE"). The Commerce Exchange Platform
Fee used as a basis for determining Maintenance Service Fees shall be updated:
(a) upon the deployment of any new Line of Business and (b) upon any Acquisition
(as defined in Section 7.1(b)) where the Acquired Revenue Base is [...***...] or
more of the Existing Revenue Base. As of the Effective Date, the Maintenance
Service Fee for the calendar year 2000 shall be equal to [...***...] of the
Baseline Maintenance Fee, and shall be thereafter increased when Business Units
are deployed on the Commerce Exchange Platform, up to a maximum amount equal to
the Baseline Maintenance Fee, such increases to be computed as follows:
BUSINESS UNIT TYPE INCREASE (as a percentage of the Baseline Maintenance Fee)
------------------ --------
Category I [...***...]
Category II [...***...]
Category III [...***...]
Where the Business Unit Types identified above are based upon definitions set
forth in Section 7.2(c)(ii) above. Any increases in the Maintenance Service Fees
for Business Unit deployment shall be pro rated based upon the number of days
remaining in the calendar year in which such deployment took place. For example,
if Zurich deploys a Category II business unit on June 6, 2000 (208 days (or
approximately 57%) remaining in the calendar year), the increase in the
Maintenance Service Fees shall be 57% of [...***...] of the then-current
Maintenance Service Fee, computed as follows:
[...***...]
Any increases in the Maintenance Service Fees during the calendar year will be
applied in total for the purpose of computing the aggregate Maintenance Service
Fee due at the beginning of the next calendar year.
2. APPLICATION MAINTENANCE.
Maintenance Service Fees for Applications will be due upon deployment of any
Application for which ChannelPoint will provide Maintenance Services under this
Agreement. The Maintenance Service Fees for Applications shall also be based on
a calendar year payable in calendar quarterly installments, and will therefore
be pro rated based upon the number of days remaining in the calendar year in
which such deployment took place.
* CONFIDENTIAL TREATMENT REQUESTED
Exhibit I-1
46
EXHIBIT J
FORM OF NONDISCLOSURE AGREEMENT
MUTUAL CONFIDENTIALITY
AND
NONDISCLOSURE AGREEMENT
THIS AGREEMENT is entered into as of the ______ day of _______________, 1998, by
and between ChannelPoint, Inc. ("ChannelPoint"), a Delaware corporation with its
principal offices in Colorado Springs, Colorado, and _________ ("Recipient"), a
__________________ corporation with its principal offices in _________________.
1. The parties are interested in exchanging certain business and technical
information of a confidential or proprietary nature (the "Confidential
Information") for the purpose of evaluating a possible business relationship
between Recipient and ChannelPoint. Such Confidential Information shall include
all information concerning the business or affairs of ChannelPoint or Recipient
(whether transmitted orally, in writing or through any electronic medium and
whether transmitted prior to or after the date of this Agreement) that are not
known by or generally available to the public at large, including, without
limitation, the other party's products, processes, business plans, marketing
plans, existing systems, technology, trade secrets. procedures and protocols,
manuals, guides, specifications and programs, and those in development, customer
lists, customer needs and requirements, employee lists, financial information
and all data received in confidence by ChannelPoint and Recipient from third
parties.
2. ChannelPoint and Recipient each agrees that during its business dealings with
the other and thereafter (a) it will hold the Confidential Information in the
strictest confidence and will not copy or disclose any portion thereof to any
third party without the written consent of the other; (b) it will not, except as
set forth in this Agreement, at any time, make any use whatever of any portion
of the Confidential Information on its own behalf or with or on behalf of any
other entity; (c) it will not reverse engineer, decompile, disassemble any
software disclosed by the other party; (d) it will not directly or indirectly
export or transmit any Confidential Information to any country to which such
export or transmission is restricted by regulation or statute; and (e) it will,
upon termination of its business dealings with the other or at any time upon the
other's request, immediately return to the other or destroy, as the other may
direct, all tangible records and all copies within its possession, custody, or
control containing or reflecting any portion of the Confidential Information.
The parties are willing to exchange such information with each other and hereby
agree on behalf of themselves, their directors, officers, agents,
representatives, employees and any advisers who may be appointed by either
party, on the following basis:
(a) The receiving party shall not disclose to any person who is not a party
to this Agreement, and shall not use, other than for the purpose of
evaluating a possible business relationship between Recipient and
ChannelPoint, any Confidential Information received. The receiving party may
disclose information to those of its directors, officers, agents,
representatives, employees and advisers who have a need to know the
Confidential Information to help evaluate the possible business relationship
and who agree to the disclosure and use restrictions in this Agreement.
(b) The obligations set forth in paragraph (a) shall have no application when
and to the extent the receiving party can establish by competent evidence
that:
(1) such Confidential Information was generally known or available to the
public, through no act or omission on the part of the receiving
party; or
(2) such Confidential Information was known to the receiving party prior
to disclosure under this agreement; or
(3) such Confidential Information was independently developed by
personnel of the receiving party who have not had access to
Confidential Information received from the disclosing party; or
Exhibit J-1
47
(4) such Confidential Information was provided to the receiving party by
a third party without any restriction on disclosure and without
breach of any obligation of confidentiality to a party to this
agreement.
3. ChannelPoint and Recipient each further agrees that (a) it will take
reasonable precautions to safeguard the confidentiality of the Confidential
Information in its possession, such precautions to be at least equivalent to
those that it takes with respect to its own confidential and proprietary
information; and (b) it will limit the dissemination of the Confidential
Information within its organization only to those persons who have a need to
know such Confidential Information for the performance of their duties hereunder
and have undertaken a binding written obligation of confidentiality with respect
to the trade secrets of others entrusted to him or her.
4. ChannelPoint and Recipient agree that any Confidential Information disclosed
by either party to the other prior to the effective date of this Agreement shall
be subject to this Agreement, whether marked as Confidential Information or not.
5. It is understood that no license, patent, or similar right with respect to
information disclosed hereunder is granted to any party under this Agreement,
and none of the parties through their execution of this Agreement is making any
commitment whatsoever with regard to a possible business arrangement with any
other party.
6. This Agreement shall be governed by and construed in accordance with the
laws [applicable at the place of incorporation or main place of business of
Zurich or any applicable Affiliate entering into this Agreement, or the State
of Colorado as agreed to by the parties], without giving effect to any conflict
of law provisions.
7. Should ChannelPoint or Recipient use, publish or disclose any Confidential
Information belonging to the other party in an unauthorized manner, the party
against whom disclosure was made shall be entitled to preliminary and permanent
injunctive relief, all costs and fees relating thereto (including reasonable
attorney's fees), any and all damages resulting therefrom, and any other relief
afforded pursuant to the laws of the United States and several states and
territories thereof. All additions, modifications and waivers to this Agreement
must be made in writing and signed by both parties.
8. If any provision of this Agreement is held to be invalid, the parties agree
that such invalidity will not affect the validity of the remaining portions of
this Agreement.
9. No party may assign or transfer any rights or obligations under this
Agreement without the prior written consent of the other, except to a purchaser
of substantially all of the assets of the assigning party who agrees to be bound
by the terms hereof. No permitted assignment shall relieve the assignor of its
obligation under this Agreement.
10. This Agreement contains the entire understanding of the parties regarding
the matters set forth herein. The Agreement may be modified only by a writing
signed by the parties. The failure of a party to insist on full compliance with
any provision of this Agreement in a particular instance shall not preclude it
from requiring full compliance thereafter.
IN WITNESS HEREOF, and intending to be legally bound hereby, the parties
have executed this Agreement.
CHANNELPOINT, INC.: RECIPIENT:
By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
Date: Date:
------------------------------ -------------------------------
Exhibit J-2
